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[2019] ZASCA 59
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De Lange NO v Minister of Water and Environmental Affairs (81/2018) [2019] ZASCA 59; 2019 (4) SA 445 (SCA) (17 April 2019)
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SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 81/2018
In
the matter between:
STEPHANUS DE LANGE
NO
APPELLANT
and
THE
MINISTER OF WATER AND
ENVIRONMENTAL
AFFAIRS RESPONDENT
Neutral
citation:
Stephanus de Lange NO v The
Minister of Water Environmental Affairs
(81/2018)
[2019] ZASCA 59
(17 April
2019)
Coram:
Navsa AP, Leach and Mocumie JJA, Mokgohloa
and Dlodlo AJJA
Heard:
6 March 2019
Delivered:
17 April 2019
Summary:
Prescription – water use rights in
terms of the
National Water Act 96 of 1998
– appellant’s
water use not an unrestricted real right – appellant’s
delictual cause of action arising
when canals the respondent failed
to maintain became inoperable – no on-going breach of
appellant’s right to water
– claim prescribed.
ORDER
On
appeal from
: Gauteng Division of the High
Court, Pretoria (Teffo J sitting as court of first instance):
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Leach
JA and Mokgohloa AJA (Navsa AP, Mocumie JA and Dlodlo AJA)
[1] The appellant is
the executor in the estate of the late Petrus Willem Terblanche (the
deceased) who, during his lifetime, was
the owner of a certain piece
of immovable property more formally known as Portion 97 of the Farm
Cornelia, in the district of Koppies.
The deceased instituted action
in the Gauteng Division, Pretoria, alleging the respondent was liable
to him for damages arising
out of a failure to maintain an irrigation
channel. This he alleged had led to him being unable to water crops
on his farm, causing
him loss. The respondent, in pleading, raised a
special plea of prescription. This was heard as a separate issue
under Uniform
rule 33(4)
and decided in favour of the respondent. The
court
a quo
refused leave to appeal but such leave was granted
by this Court. On the subsequent death of the deceased, the appellant
was substituted
in his stead.
[2] The farm lies
downstream of the Koppies Dam and within the area of the Rhenoster
River Government Water Scheme (the Scheme)
established in terms of s
73 of the Water Act 54 of 1956. The respondent, the Minister of Water
and Environmental Affairs, is responsible
for and has authority over
the nation’s water resources and their use, including the
equitable allocation of water for its
beneficial use and the
redistribution. Although the Water Act 54 of 1956 was repealed by the
National Water Act 36 of 1998 (NWA)
on 26 August 1998, the deceased
had exercised a lawful water use for more than a period of two years
under the former Act until
the NWA came into operation. That being
so, by reason of the provisions of s 32(10)
(a)
(i) of the NWA,
he enjoyed an existing lawful water use as envisaged by that Act.
[3] Although the
farm is 457,114 hectares in extent, in terms of the Scheme the
deceased was only entitled to irrigate an area of
five hectares.
Prior to 2003, he did so by abstracting water from the Koppies dam
which ran by way of a mostly unlined irrigation
canal to the farm.
When he testified, the appellant stated that he used the water to
irrigate lucerne which, in turn, he used to
feed a dairy herd. He
stated that when he stopped irrigating for the reasons set out below,
he resorted to using dry land lucerne
which was not as beneficial for
his cattle as the irrigated lucerne had been; this caused a fall-off
in his milk production and,
after having been initially forced to
reduce the number of his cattle, he was eventually forced to give up
dairy farming altogether.
This was totally at odds with his
allegations in his particulars of claim where no mention was made of
any dairy farming activities.
Instead he alleged that he had been
growing grain sorghum on the five hectares of land that he was
entitled to irrigate and that
as a result of his not being able to
irrigate for several years, his production was less. Thus he claimed
the value of the tonnage
of grain sorghum that had been lost.
[4] Whatever the
truth may be, the issue is whether the deceased was entitled to claim
for his loss, whether arising from dairy
farming or grain sorghum
production. Importantly, in this regard, it appears to be common
cause that by the year 2003, irrigation
on the farm had ceased.
During 2002, the area in which the deceased farmed started to
experience drought. On 20 January 2003, water
restrictions were
imposed on water users within the Scheme and, during the course of
that year, the operation and maintenance of
the irrigation canals
ceased. As a result, during the course of that year they reached such
a state of dilapidation that they could
no longer be used to supply
water to the deceased’s farm. At the same time the drought
tightened its grip and from 2004 to
2005 no water was, in any event,
available in the Koppies Dam to be supplied to the deceased’s
farm, even had the Scheme
been operating.
[5] The drought
continued until end of January 2005. It started to rain during
February 2005. The respondent did not resume water
supply to the
property, despite the fact that the Koppies dam was approximately
half full. By that stage the Scheme had for all
practical purposes
come to an end. Even though there was water available, it was not
being used for purposes of the Scheme. The
irrigation canals were so
dilapidated that they could not be used and, importantly, the
deceased and other members of the Scheme
appear to all intents and
purpose, to have abandoned it. Certainly the deceased had ceased to
pay any of the dues and levies he
was obliged to pay as a water user
under the Scheme.
[6] In 2005, the
Free State Agriculture Association, acting on behalf of the appellant
and other water users of the Scheme, applied
to the national
Department of Water and Forestry for drought relief for the years
2003/2004 and 2004/2005. The application was
approved and gazetted
on16 March 2007 and resulted in water users of the Scheme becoming
entitled to a rebate with regard to the
depreciation component (100%)
and the operation and maintenance component (70%) of the water use
charges with effect from 6 August
2007 but with retrospective effect
for the 2003/2004 and 2004/2005 years – the operating and
maintenance component increasing
to 100% in the latter period.
However, the deceased had already accumulated an account of almost
R44 000 for unpaid water use charges
by January 2005, and he
continued not to pay any charges for the years that followed. Nor did
he at any stage seek to be supplied
with water under the Scheme. As
we have said, the Scheme was treated by all as no longer operating.
[7] Then, in
February 2009, the deceased together with other water users on the
Scheme, launched an application for a
mandamus,
seeking an
order that the respondent be ordered to repair and maintain the
canals and resume water supply. They further applied
for a declarator
that no water use charges be levied from 9 February 2006 until the
date upon which the respondent resumed to supply
them with water. The
application was settled on the basis that the Scheme was
discontinued, and the respondent paid the appellant
and other members
of the Scheme certain amounts of money in lieu of the deregistration
of their respective water use rights. This
was duly done by 6 October
2010.
[8] Shortly
thereafter, the attorneys who had represented the deceased in the
recently settled proceeding, and acting on a contingency
basis (so we
were informed from the Bar), instituted these proceedings on behalf
of the deceased, claiming damages allegedly sustained
as a result of
the respondent not having supplied water to the farm from 2007 to
2010. In his particulars of claim, the deceased
claimed amongst
others, that during 2003 the officials of the respondent had
suspended water supply to his farm, thereby infringing
his water use
rights; and that he, as a result could not irrigate the five hectares
and had therefore suffered damages in the amount
of R250 000 –
being the alleged value of the sorghum lost. The claim of the
deceased was but one of six brought by farmers
in the Scheme who had
just sold their water rights, but was heard by the court
a quo
as
a test case.
[9] This was the
claim the respondent alleges had prescribed before the issue of
summons. Although the damages were calculated within
three years of
the summons, the respondent contended that the cause of action,
namely the neglect of the irrigation canals which
the respondent had
been obliged to maintain, had arisen by 2003 as they were by then not
capable of being used. This essentially
was the argument upheld in
the court
a quo
.
[10] The appellant
sought to avoid the obvious consequence of this by arguing that the
deceased’s claim had been to enforce
a right which was an
incident of ownership, namely a riparian owner’s right to
abstract water, limited though it is by statute.
As a real or
statutory right, and not a mere personal right, so the argument went,
it was a right which did not prescribe. Accordingly,
there had been
an on-going or continuous breach of the deceased’s such right
during the period 2007 to 2010 and his claim
for loss suffered during
that period was not susceptible to prescription.
[11] As already
mentioned, the deceased enjoyed a lawful water use under s 32 of the
NWA when that Act came into operation. However,
s 39 of the NWA
provides:
‘
(1) A responsible authority may, subject to
Schedule 1, by notice in the Gazette-
(a)
generally;
(b)
in relation to a specific water resource; or
(c)
within an area specified in the notice,
authorise all or any category of persons to use water,
subject to any regulation made under section 26 and any conditions
imposed
under section 29.’
[12] As is apparent
from this, the deceased did not have carte blanche to abstract as
much water as he desired or to do therewith
what he wanted. As set
out in the preamble to the NWA, water is a scarce national resource
and national government is responsible
for its use, including its
allocation. A brief glance at the NWA shows the extent of control
vested in the State over water. As
the preamble to the NWA records:
‘
Water
is a scarce and unevenly distributed national resource which occurs
in many different forms which are all part of a unitary,
inter-dependent cycle. While water is a natural resource that belongs
to all people, the discriminatory laws and practices of the
past have
prevented equal access to water, and use of water resources. The
national government is responsible and has authority
over the
nation’s water resources and their use, including the equitable
allocation of water for the beneficial use, the
redistribution of
water, and international water matters. The ultimate aim of water
resource management is to achieve the sustainable
use of water for
the benefit of all users.’
[13] Chapter 4 of
the NWA, ss 22 to 27 in particular, prescribe restrictions upon the
permissible use of water. In the present case,
the deceased was only
allowed to abstract a certain quantity of water and to irrigate only
five hectares of the farm. But regulations
under s 26 and conditions
under s 29 also applied. Simply put, he had to request to be
allocated a water quota and had to pay various
charges, both in
respect of the quantity of water used, the area to be irrigated and
in respect of fixed capital and operating
costs (in respect of which
the drought relief we have mentioned operated.) The deceased did none
of these. He did not ask the Scheme
for water, either using the
prescribed procedures or at all, and he did not pay any of the
charges envisaged in ss 56, 57, 58 and
59 of the NWA.
[14] The deceased
testified that before he could be supplied with water, he would have
had to complete a form in which he would
have indicated the amount of
water he needed and for how many days. He would have submitted the
form to the respondent’s
officials. As stated above, there is a
great demand on water which is itself a scarce resource. It seems to
us, therefore, that
it would be appropriate for the respondent to
know how much water is needed by how many water users in order for
the respondent
to manage the supply of water to them. Be that as it
may, the appellant did not complete the form and failed to exercise
such right
as early as in 2003 when the supply of water was stopped.
[15] We accept for
present purposes that the water use right held by the appellant did
not constitute a mere contractual right to
abstract water –
Impala Water Users Association v Lourens NO & others
2008
(2) SA 495
(SCA) para 18 – and that a failure to exercise such
right did not lead to it becoming prescribed. However it is also
clear
that, whatever its precise nature may have been, such right to
use water was not unconditional. Rather it was dependent upon the
deceased complying with the various preconditions that entitled him
to receive water, including, in particular, him applying for
water as
prescribed and paying the charges that were levied (which were
required inter alia to maintain the infrastructure of the
Scheme).
Not only did the deceased fail to pay any water charges during the
period 2007-2010 to which his claim relates, but he
never sought to
abstract water during that period either. Indeed both he and the
authorities treated the Scheme effectively as
a thing of the past and
his water use right as dormant and non-existent. In the light of the
above, the appellant’s submissions
that the respondent bore an
on-going statutory duty to maintain the canal and distribute water,
and that its failure to do so was
an on-going wrong so that the
deceased’s claim has not prescribed, falls to be rejected.
[16] Indeed, it
would in these circumstances be irrational to accept that the
deceased became entitled to recover damages for a
breach of a right
to use water, whatever the nature of that right might be, which he
had not in any way purported to exercise during
the years in
question. For these reasons we are of the view that there is no merit
in the suggestion of an actionable on-going
breach of the appellant’s
water use right, and the deceased’s claim in that regard must
fail.
[17] Consequently,
and at best for the deceased, there is a claim for damages flowing
from an omission on the part of the respondent
to maintain the water
canal which had rendered it inoperative by 2003. For present purposes
(but without deciding the issue) even
if it is assumed that such
omission was negligent, any claim for damages caused thereby (which
would constitute a ‘debt’
as envisaged by the
Prescription Act) had arisen by 2003.
[18]
Section 12(3)
of the
Prescription Act 68 of 1969
provides that a debt shall not be
deemed to be due until the creditor has knowledge of the identity of
the debtor and of the facts
from which the debt arises. There is no
suggestion that the deceased was not aware of the degradation of the
irrigation and canals
that had taken place by 2003 nor of the fact
that the State had allowed this to happen. It was the failure to
maintain the canals
that led to them becoming inoperable, and that
was when the cause of action arose. It is also not suggested that the
prescriptive
period for a delict such as this is anything other than
three years. In these circumstances we are of the view that the court
a quo
correctly upheld the plea of prescription.
[19] The appeal is
dismissed with costs, such costs to include the costs of two counsel.
_____________________
L
E Leach
Judge
of Appeal
and
_____________________
F
E Mokgohloa
Acting
Judge of Appeal
Appearances:
For the
Appellant: J H A Saundera
Instructed
by:
Taute,
Bouwer & Cilliers Incorporated, Pretoria
Honey
Attorneys, Bloemfontein
For the
Respondent: M P D Chabedi (with her A Thomson)
Instructed
by:
The
State Attorney, Pretoria
The
State Attorney, Bloemfontein