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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A270/24
CASE NO. A QUO: 4654/2019
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
SIGNATURE
DATE 6/10/2025
In the Full Court Appeal of:
RAND WATER BOARD Appellant
and
RAUTENBACH, IANTHE FLORENCE First Respondent
TSHWANE METROPOLITAN MUNICIPALITY Second Respondent
JUDGMENT
CORAM MOLOPA-SETHOSA J, FRANCIS-SUBBIAH J AND LABUSCHAGNE J
[1] The Rand Water Board (the “ appellant”) is an organ of State established in
terms of the Water Services Act, 108 of 1997, which has a pipeline servitude
that runs through Woodhill Golf Estate in Pretoria to supply the residents of
Pretoria East with sufficient water. The appellant alleges that the home and
the pool on the first respondent’s property encroach on the appellant’s 16
meter servitude and onto a 2 meter buffer zone on the side of the servitude,
thereby preventing the appellant from installing a second pipeline. The first
respondent passed away in 2023 and was represented at trial and in the
appeal by her duly appointed executor.
[2] In the Court a quo the appellant sought an order in motion proceedings that
the first respondent be directed to demolish the encroachment, failing which
the Sheriff should do so. As an alternative, a declarator was sought that the
first respondent has spoliated the appellant of its undisturbed possession of
the servitude, including a 2 meter buffer zone on each side thereof.
[3] The matter came before Neukircher J who referred to matter to trial. The
matter proceeded to trial before Swanepoel J who held that the appellant
had consented to the construction of the structures which it now contends
need to be demolished.
[4] The first respondent brought a counterclaim based on an allegation by the
plaintiff in its founding affidavit that the existing pipeline has not been
maintained and is at serious risk of bursting. In the counterclaim the first
respondent sought an order , that the appellant should inspect the pipeline
and report to the first respondent and to the Court whether the pipeline is
safe, and if not, the appellant should state what precautions are to be taken
to minimise the danger. The first respondent also sought a declaratory order
that the appellant had consented in writing to the development in its current
form, alternatively that the first defendant be granted consent for the current
encroachment as provided for in the notarial deed of servitude.
[5] Swanepoel J dismissed Rand Water’s claim on the basis of consent having
been given and upheld the counterclaim in part , directing Rand Water to
inspect the pipeline and to comply with its statutory duties.
[6] This is the appeal against the dismissal of the claim and the granting of the
counterclaim by Swanepoel J . The appeal is with leave of the SCA,
Swanepoel J having refused leave to appeal.
THE SERVITUDE
[7] On 9 December 1997 a servitude was registered over the remainder of
Portion 2 […] of the Farm Garsfontein 3[…], Registration Division JR,
Gauteng in favour of the Rand Water Board, granting it the right to convey
water and to transmit water over a strip of land situated on the aforesaid
property, 16 meters wide and measuring a total of 2,5887 hectares in extent,
as denoted on Surveyor General Diagram 9450/1982 with the letters
ABCDEFGHJKLMNP. The area is defined as the “strip” in the Deed of
Servitude K7429/1997S. The rights of the appellant include the right to
patrol, inspect, maintain, repair , remove and relay the pipeline and its
accessory equipment on the strip, including a right of way and a right of
ingress and egress from the property.
[8] The provision pertaining to offending structures in the buffer strip of 2 metres
is in paragraph 2, which reads:
“2. There shall be no structures erected, parking allowed, trees planted or
material placed or deposited on or over the strip, or within 2 (two)
meters thereof, and the depth of cover over the pipeline shall not be
materially altered, without written consent from Rand Water, which
consent shall not be unreasonably withheld.”
[9] The 16 meter strip (“the strip”) is 1.6 km long and has a 2 meter buffer zone
on either side.
[10] In the Court a quo uncontested evidence of a surveyor, Mr Matsobane Dolo
established that the first respondent ’s home does not encroach onto the
servitude. It does however encroach 0.34 meters into the buffer zone for a
total area of 1.25 square meters and the first respondent’s swimming pool
encroaches by 1.65 meters onto the buffer zone, for a total area of 6.32
square meters.
[11] The appellant contended that due to the encroachments it is unable to lay a
second pipeline on the northern side of the existing pipeline, which is on the
far side of the existing pipeline from the first respondent’s home.
[12] The Court a quo found that the appellant’s servitude extends to the strip, but
not to the buffer zone. As far as the buffer zone is concerned, the appellant
merely have the right to insist that the buffer zone is not encroached upon. It
however does not have the right of use of the buffer zone for purposes of
laying the pipeline. That has to take place within the strip of 16 meters.
[13] This point alone would be dispositive of the appellant’s case in the Court a
quo, but the Court a quo assumed in favour of the appellant that it ha d the
same rights in respect of the buffer zone as it has in respect of the strip.
[14] The Court then proceeded to determine whether written consent had been
granted by the appellant as envisaged by Clause 2 of the Deed of Servitude
for the encroachments in the buffer zone.
THE FACTS
[15] The salient facts pertaining to the dimensions and location of the servitude
and the encroachments are not challenged on appeal. The dispute on
appeal relates to whether Rand Water consented to the encroachments. In
paragraphs [10] to [14] of the judgment a quo Swanepoel J sets out the
relevant facts with reference to the documents which are here repeated:
“[10] On 28 November 2005 the architects, acting on behalf of the
developer of the property, Nuclei Lifestyle Design, sought consent
from the plaintiff ( Rand Water-our insertion)) for the development of
the property. The material part of the letter reads as follows:
‘DEVELOPMENT OF ERF 4[...] P[...] P[...] X[...]
The registered letter received from The City of Tshwane City
Planning
PRETORIA AMENDMENT SCHEME 9196: ERF 4[...] P[...] P[...] [...]
states in annexure B of Amendment Scheme 9169/.8:
‘all the conditions imposed by Rand Water shall be complied
with to the satisfaction of the municipality.’
• Firstly could you please forward us all the conditions referred to
by the municipality, and
• Secondly also have a look at the site development plan
attached and let us know if this will be acceptable for Rand
Water.”
[11] Attached to the letter was a site plan reflecting the envisaged
development. The plan reflected the 16 meter wide strip, but it did
not reflect the 2 meter buffer zone. All six of the relevant homes,
including the first defendant’s home (Unit […]) are reflected on the
plan, and clearly, all encroach into the buffer zone, and one also
encroaches into the servitude by approximately 10 cm.
[12] On 8 December 2005 the plaintiff replied to the architect’s letter.
The reply commenced with the words: ‘Your letter of 28 November
2005 and the accompanying plan, refer (my emphasis)’. The letter
recorded that the proposed development was in close proximity to
the servitude. It also recorded that the plaintiff intended to lay a
second pipeline along the servitude. Furthermore, the plaintiff
recorded that it required unimpeded access to the pipeline at all
times. It also dealt with certain requirements relating to fencing, and
a number of other prohibitions. Significantly, the letter did not refer
at all to the buffer zone. It simply recorded that the plaintiff was the
holder of a 16 meter wide servitude in terms of Deed of Servitude
K7429/97. Attached to the letter was an annexure “A”, and the first
defendant’s architects were specifically referred to Clause 1.3
thereof. The material part of the letter reads as follows:
“Rand Water has no objection in principle to the proposed
development provided than in addition to the abovementioned
requirements, all the relevant conditions in the enclosed copy of
annexure “A” are complied with and accepted in writing by your client
and/or the owner.
[13] It is common cause that the letter of 8 December 2005 is a consent
to the development of the property on the conditions set out therein
and in annexure “A” to the letter. The first question is what
conditions were imposed upon the developer and secondly whether
the plaintiff consented to the erection of buildings in the buffer zone.
The plaintiff says that he did not consent to an encroachment into
the buffer zone, and that the reference in the letter to Clause 1.3 of
annexure “A” makes it clear that no construction was allowed to take
place in the buffer zone. The plaintiff led the evidence of Ms Paleka
Mashele, who testified that she was a Senior Civil Technologist in
the plaintiff’s employ. She denied that the plaintiff had consented to
the erection of structures in the buffer zone. She relied upon Clause
1.3 of annexure “A” to justify her view. Clause 1.3 reads as follows:
‘No service (e.g. Fibre Optic Cables / Telecommunications Cables)
running parallel to Rand Water’s pipeline/s, no box, manhole,
structure supporting any services, footing of any pylon, pill or stay
wire and no stormwater culvert / or appurtenances shall be within 2
meters of Rand Water’s pipeline/s or on Rand Water’s servitude/s or
proposed servitude/s or discharge thereon unless the written
permission of Rand Water has been obtained. Rand Water’s final
approval needs to be obtained. Such services must be outside Rand
Water’s servitudes.’
[14] On 22 February 2008 the o wner’s consulting engineers wrote a
further email to the plaintiff, again attaching a plan showing the
layout of the proposed development. This plan also did not show the
buffer zone, but it clearly showed that the houses were to be erected
partially on the area of the buffer zone, and that one home would
also encroach onto the strip (by 3 cm). On 6 March 2008 the plaintiff
replied to the email. It pointed out that the plaintiff had previously
commented on the proposed development, and it simply repeated
commented on the proposed development, and it simply repeated
the conditions set out in the plaintiff’s letter dated 8 December 2005.
Once again, a reference is made to annexure “A”, and particular to
Clause 1.3 thereto. No reference is made to the buffer zone. The
relevant part of the letter reads as follows:
‘No structures including gazebos, patios, splash pools, etc. will be
allowed within Rand Water’s servitude (referred to Clause 1.3 of
attached annexure “A”) (my emphasis)’.”
[16] The appellant contends that Clause 1.3 must be interpreted to have
conveyed to the developer that the erection of any structures on the buffer
zone was prohibited.
[17] The Court a quo found that the appellant had approved the development on
two separate occasions with express reference to the site plan. The first was
prior to construction. That site plan indicated, as set out supra, where
encroaching structures would appear on the buffer zone. Even assuming
that the appellant had the right to use the buffer zone (which was found not
to be the case) the Court a quo found that the appellant was on the facts
estopped from asserting its rights. It was bound to the representation of
consent as contained in its responses to applications for consent as set out
supra.
[18] The reference to estoppel as a defence would only arise if the appellant had
not in fact consented. As the question of consent is determined by the
Court’s interpretation of Clause 1.3 and clause 2 of the Deed of Servitude as
quoted supra, a finding that there was consent is dispositive of the matter.
THE COUNTER APPLICATION
[19] In paragraphs [77] to [79] of the founding affidavit the deponent for Rand
Water states:
“… as a result of these obstructions or encroachments, at the point of the
encroachments, it has been rendered impossible to undertake patrols,
inspections, remove or lay further pipelines, as the applicant now urgently
seeks to do … In fact, in the normal course, the pipeline network is exposed
to corrosion from stray current sources, corrosive soils and microbiological
corrosion, which results in metal loss and threatens the integrity of the
pipeline … Upon a likely and resultant pipeline burst, the consequences will
certainly be catastrophic and deadly, owing to the high volume of water and
the pressure through which it will flow out, in particular, considering the close
proximity of the encroaching structures to the pipeline.”
[20] The Court a quo found that, as these averments emanated from the
appellant, and as it had expressed no intention of maintaining the pipeline in
the normal course, that a need for the interdict had been established.
THE APPELLANT’S CONTENTIONS ON APPEAL
[21] The crux of the appellant’s contentions is that, on a proper construction of
Clause 2 of the Deed of Servitude, the appellant could only consent to any
development, both in the strip or servitude and buffer zone, in writing. The
appellant contends that the Court a quo erred and ought to have found that
firstly there was no application to develop the buffer zone, and secondly, that
there is no written consent to develop the buffer zone.
[22] In the alternative, the appellant contends that Clause 2 of the Deed of
Servitude reigns supreme and that Clause 1.3 of the annexure “A”, being a
subsidiary document “cannot be used to make or render the terms of the
Deed of Servitude unworkable or to make the servitude impractical and
ineffective.”
[23] In respect of the granting of the counterclaim, the appellant contends that the
Court a quo erred in misconstruing the dangers referred to. The appellant
contends that the risks to the pipeline are created by the encroachment and
not by the failure to maintain or inspect the pipeline.
On the issue of costs, the appellant contends that the Court a quo erred in
awarding costs of two counsel. It contends that the Court a quo failed to
exercise a discretion in respect of costs.
[24] During argument, counsel for Rand Water sought to interpret the aforesaid
letters of 8 December 2005 and 6 March 2008 without reference to the site
plan, that was annexed to each of the letter s, contending that it was
impermissible to refer to the site plan.
[25] As far as the counterclaim is concerned, the appellant argued that the
affidavit evidence relied on by the court as the basis for the order granted a
quo was not before the trial court . Those affidavits served before Neukircher
J but were not “in evidence” before Swanepoel J.
DISCUSSION
[26] The appellant advanced a position on appeal at variance with the evidence
that served before Swanepoel J in contending that clause 1.3 of its standard
terms and conditions in respect of servitudes cannot be used to interpret
clause 2 of the Deed of Servitude. At trial Ms Mashele based her case for
the absence of consent on clause 1.3 (see par [13] of the judg ment a quo,
quoted supra in par [15 ]). She was however only employed by Rand Water
in March 2013. Her interpretation of documents is therefore a retrospective
interpretation of documents written prior to her employment by Rand Water.
[27] Swanepoel J correctly found that clause 1.3 prohibits structures within two
meters of the pipeli ne and not within two metres of the pipeline servitude.
The latter would have included the buffer zone. But grammatically the
prohibition related to structures within close proximity to the pipeline. The
evidence is therefore not on point.
[28] It is trite that documents need to be interpreted using the three guiding
principles set out in Natal Joint Municipal Pension Fund v Endumeni
Municipality [2012] ZASCA 13) at par (17 - 26) of text, context and
purpose.
[29] The appellant’s interpretation exercise pertaining to consent to
encroachments as envisaged by clause 2 the Deed of Servitude is difficult to
understand. The appellant made much of the fact that the letters by Rand
Water reflected early in the document that the encroachments were in close
proximity to its servitude of pipeline. That alone is advanced as an indicator
that there was not consent. In addition, it was argued that the annexed site
that there was not consent. In addition, it was argued that the annexed site
plan could not be referred to as part of the interpretation of the letters
concerned.
[30] The aforesaid approach falls fouls of two principles of interpretation . The first
is that a document needs to be read as a whole . The second is that, where
Rand Water itself attaches the site plan as part of its response, that site plan
becomes part of the document, or at least provides context for the response.
Whether the annexure is seen as part of the letter as a matter of text alone ,
or whether it merely provides context, both approaches point to its inclusion
in the interpretation of the letter.
[31] Rand Water’s argument on consent ignores the fact that the Rand Water
letters of 2005 and 2008 were responses to enquiries whether the layout on
the site plan would meet with Rand Water’s approval. And both letters
express no objection in principle and attach the very site plan in question. To
craft a negative response in such circumstances is to ignore the context of
the response and its content, read as a whole.
[32] The finding of the court a quo on the presence of consent , as envisaged in
clause 2 of the Deed of Servitude , for the struc tures in the buffer zone
cannot be faulted. That is dispositive of the crux of the appeal.
[33] On a belts and braces approach, the court a quo entertained an alternative
basis of consent based on an estoppel . It found that, even if there w ere
some subjective reservatio mentalis on the issue of consent, that Rand
Water gave a negligent representation of consent , based on which the
structures were erected in the buffer zone . Having acted to her detriment, in
reliance on such representation being made, by constructing the
encroachments in the buffer zone, the first respondent is entitled to hold
Rand Water to its representation of consent.
[34] The only issue in respect of the estoppel is whether the requirement
imposed in certain authorities that the repres entation had at least to be
negligent, had been established. The authorities o n estoppel include a
negligent, had been established. The authorities o n estoppel include a
limited fault requirement. The requirements for an estoppel do not expressly
require fault-In Aris Enterprises (Finance) (Pty)(Ltd) v Protea Assurance
Co Ltd 1981 (3) SA 274 (A) the following is stated at 291B:
“Finally, I come to the estoppel point. Appellant's counsel agreed that the
estoppel contended for by him was an instance of estoppel by
representation. The essence of the doctrine of estoppel by representation is
that a person is precluded, i .e. estopped, from denying the truth of
a representation previously made by him to another person if the latter,
believing in the truth of the representation, acted thereon to his prejudice
(see Joubert, The Law of South Africa vol 9 para 367 and the authorities
there cited). The representation may be made in words, i .e. expressly, or it
may be made by conduct, including silence or inaction, i .e. tacitly (ibid para
371); and in general, it must relate to an existing fact (ibid para 372).”
[35] The representation in question must have the capacity to mislead a
reasonable man (Ibid at 292E)- i.e. the failure to correct a wrong impression
reasonably created can result in the invocation of an estoppel.
[36] In this instance the letters from Rand Water created a clear impression that
consent to the location of specific encroachments detailed in a site plan was
being given in 2005 (and later confirmed in 2008 in respect of a slightly
amended and annotated site plan ). A reasonable man would interpret the
letters in this manner and the failure to correct that impression timeously
would be negligent as reliance on the misrepresentation was foreseeable.
[37] Although unnecessary on the facts, the court a quo correctly applied the
principles of estoppel as an alternative approach. As there was consent
there is no need to consider the scenario that was pleaded by the first
respondent, in its third counterclaim, i.e. that consent was unreasonably
withheld and that an order to that effect should be granted.
THE COUNTERCLAIM
withheld and that an order to that effect should be granted.
THE COUNTERCLAIM
[38] Counsel for Rand Water contended that, as the sole source for the granting
of the counterclaim was the content of certain paragraphs of Rand water’s
founding affidavit in the motion proceedings , the court a quo erred as those
affidavits were not evidence before the trial court. That would distinguish a
referral to trial from a referral to evidence where the affidavits are still before
court as the proceedings remain motion proceedings . This distinc tion is
important since the consequences are different, as was highlighted by the
Supreme Court of Appeal in Lekup Prop Co No 4 v Wright 2012 (5) SA 246
SCA at [32]:
'[32] … It will be recalled that the appellant initiated motion proceedings and
that the matter was referred to trial after the respondent had filed his
answering affidavit. At the trial the respondent was allowed to read from
that affidavit and did so, extensively. That was not the correct
procedure. … Affidavits filed may of course be used for cross -
examination and also as proof of admissions therein contained, but
(save to the extent that they contain admissions) they have no
probative value; and in the absence of agreement, they do not stand as
the witness's evidence -in-chief or supplement it . … A referral to trial is
different to a referral to evidence, on limited issues. In the latter case
the affidavits stand as evidence, save to the extent that they deal with
dispute(s) of fact; and once the dispute(s) have been resolved by oral
evidence, the matter is decided on the basis of that finding together
with the affidavit evidence that is not in dispute.
[39] What distinguishes the aforesaid position is that the first respondent in claim
1 of her counterclaim quoted in full at par 85 of the counterclaim the content
of par 77 -80 of the founding affidavit of Rand Water, which Rand Water
admitted in the plea to that counterclaim. Those paragraphs were therefore
common cause before the trial court.
[40] The trial court therefore did not err in this regard. There is no basis for
interfering with the partial granting of the counter application.
COSTS
[41] Counsel for the appellant contends that the court a quo did not apply its mind
by ordering it to pay the costs of two counsel.
[42] This submission was made while counsel for the appellant was leading junior
counsel in the appeal. It was submitted that that is an irrelevant
consideration as the complexity of the issues determine the costs. Two
counsel were thought to be justified by both parties. While that is not a
conclusive consideration , it is relevant. In addition, the court regards the
issue to be sufficiently important to the estate of the late Ms Rautenbach to
employ two counsel. This dispute with Rand Water has had the effect of
depressing the value of her property and the administration of her estate.
There are many other adjacent properties for which this is a test case. It is
therefore an important issue in the community whose properties a re subject
to the servitude in that area.
[43] Having considered both arguments before this court, and taking into
consideration all factors; and in the light of what is stated above, it is
proposed that an order in the following terms be made:
ORDER
[44] In the premises the following order is made:
1. The appeal is dismissed with costs, such costs to include the costs of
two counsel, on Scale C
EC LABUSCHAGNE
JUDGE OF THE HIGH COURT
I agree
L M MOLOPA-SETHOSA
JUDGE OF THE HIGH COURT
I agree
R FRANCIS-SUBBIAH
JUDGE OF THE HIGH COURT
APPEARANCES:
FOR APPELLANT:
INSTRUCTED BY:
FOR RESPONDENT:
INSTRUCTED BY: