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[2026] ZALMPPHC 55
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Schoeman NO and Another v Pusela Irrigation Board (HCA52/2024 ; HCA53/2024) [2026] ZALMPPHC 55 (17 February 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE No:HCA.52/2024
HCA 53/2024
(1) REPORTABLE: YES/
NO
(2) OF INTEREST TO THE
JUDGES: YES/
NO
(3) REVISED: YES/
NO
DATE: 17/02/2026
SIGNATURE: DIAMOND AJ
In the matter between:
JOHAN
SCHOEMAN.N.O. AO
APPELLANT (HCA 52/2014)
MOLANI
BOERDERY (PTY) LTD
APPELLANT (HCA 53/2014)
and
PUSELA
IRRIGATION BOARD
RESPONDENT
JUDGMENT
DIAMOND
AJ:
[1]
This is an appeal against the judgment and order of the Additional
Magistrate, Tzaneen, delivered
on 8 October 2024, refusing the
Appellant's application for leave to amend its plea and dismissing
that application with costs.
[2]
The magistrate recorded at the outset of his judgment that, for
practical purposes and the sake of convenience,
case numbers
1612/2023 and 1613/2023 in the Tzaneen Magistrates' Court would be
heard together, and that the outcome in case 1612/2023
would
determine the outcome in case 1613/2023. The same position obtains on
appeal. The Respondent, Pusela Irrigation Board, instituted
separate
actions against different defendants, but in each action the
defendants advanced identical defences and the same legal
issues
arise. Those actions. have given rise to two appeal matters in this
Court, namely case numbers HCA 53/2024 (arising from
case 1612/2023)
and HCA 52/2024 (arising from case 1613/2023). Given the complete
overlap in issues, it is neither necessary nor
desirable to deliver
two separate reasoned judgments. This judgment is therefore handed
down under both case numbers HCA 53/2024.
[3]
The appeal raises a narrow but important procedural question:
whether, in the circumstances of
this case, the magistrate was
correct to refuse an amendment on the footing that the proposed
defence was "excipiable"
and "bad in law" because
of the magistrate's interpretation of section 98 of the National
Water Act 36 of 1998 ("the
NWA").
[4]
The question is complicated by the fact that the legal issue
underpinning the proposed amendment
has been considered, though not
entirely exhausted, in earlier decisions of the Supreme Court of
Appeal and of this Division. These
include
S
v Mostert and Another
[1]
and
Crocodile
River West Irrigation Board v Allies Farms SA (Pty) Ltd
[2]
.
[5]
The appeal thus sits at the intersection of two bodies of doctrine:
the law of amendments of pleadings
in the magistrates' courts, and
the transitional regime regulating irrigation boards under section 98
of the NWA.
OUTLINE OF THE
PLEADINGS AND THE ATTEMPTED AMENDMENT
THE SUMMONS AND
PARTICULARS OF CLAIM
[6]
The Respondent, Pusela Irrigation Board ("Pusela"),
instituted action in the magistrates'
court against the Appellant,
Molani Boerdery (Pty) Ltd ("
Molani
”), under case
number 1612/2023. The claim is for levies allegedly due in respect of
water allocated to two agricultural portions
(Portion 190 and Portion
191 of the Farm Pusela 555 LT) within the irrigation district
administered by Pusela.
[7]
In the summons and particulars of claim, Pusela pleads in essence
that:
•
It
is an irrigation board responsible for water allocation and levies
within its jurisdiction.
•
Water
has been allocated to the Appellant's farms and levies have been
raised in respect of specified periods.
•
The
Appellant has failed to pay certain levies, resulting in an alleged
outstanding balance, for which Pusela sues, together with
interest
and costs.
THE ORIGINAL PLEA
[8]
Molani delivered its original plea on 1 November 2023. In that plea
it raises,
inter alia
, a defence directed at Pusela's
authority and standing under the NWA. The key passages are paragraphs
1.3 and 1.4, which the Appellant's
heads of argument quote and rely
upon:
•
Paragraph
15 referring to paragraphs 1.3 and 1.4 of the plea that Pusela "can
only properly function as a water user association
and that it was
obligated to, in terms of
section 98(4)
of the
National Water Act,
have
applied to the Minister for its conversion from an irrigation
board to a water user association, which application must have been
lodged within six months from the commencement of the Water Act."
•
Paragraph
1.4 pleads that "the establishment of the plaintiff is not
catered for in the Water Act, nor is any right of the
plaintiff to
charge consumers levies, in the instance of an irrigation board,
catered for in the Water Act as read with the Water
Services Act."
[9]
On the strength of these allegations, the original plea already put
in issue whether Pusela, as
an irrigation board that has not
transformed into a water user association, has lawful authority under
the NWA to levy charges
and to sue for their recovery.
[10]
It is common cause that Pusela did not bring an exception to the
original plea. No application was
made to strike out these paragraphs
as vague, embarrassing, or bad in law. The action was joined on the
basis that these defences,
at least textually, stood as pleaded.
NOTICE OF INTENTION TO
AMEND AND PROPOSED AMENDMENTS
[11]
On 3 June 2024, Molani delivered a notice of intention to amend its
plea in terms of Rule 55A(1) and
(2) of the Magistrates' Courts
Rules. The notice is contained at pages 14-17 of the appeal record.
[12]
The proposed amendment leaves the essential section 98(4) defence
intact but seeks to "clarify
and elaborate" its legal
consequences by inserting new paragraphs 1,4 to 1.8, and by
renumbering certain existing paragraphs.
In substance, the
amendments:
•
Plead
expressly that section 98(4) of the NWA is peremptory, using the
mandatory "must".
•
Plead
that non-compliance with section 98(4) - i.e. failure to submit the
required transformation proposal within six months of
the
commencement of the NWA - has the legal consequence that Pusela loses
its powers, duties and functions as an irrigation board
under the
NWA.
•
Plead,
more specifically, that by virtue of the "subject to subsection
(4)" wording in section 98(3), the board's previously
existing
powers and duties can only continue if it has complied with section
98(4); absent such compliance, section 98(3)(a) and
(b) fall away and
the board is left without operative authority to levy charges or sue.
[13]
In short, the amendment does not introduce a wholly new line of
defence. It takes the existing contention
- that Pusela failed to
comply with section 98(4) - and articulates more fully what the
Appellant alleges the legal consequences
of that non-compliance are.
THE OBJECTION AND
APPLICATION FOR LEAVE TO AMEND
[14]
On 10 June 2024 Pusela delivered a notice of objection to the
intended amendment, contending that the
amendment would render the
plea excipiable and that the automatic loss of powers theory is bad
in law, being inconsistent with
section 98(2) and (3) of the NWA and
with case law on the continued existence and powers of irrigation
boards.
[15]
In consequence of the objection, Molani launched a formal application
for leave to amend, supported
by the founding affidavit of its
attorney, Mr Erasmus. That application came before the Additional
Magistrate, Tzaneen, on 23 August
2024 and was argued by counsel for
both parties.
STATUTORY CONTEXT:
SECTION 98
OF THE
NATIONAL WATER ACT
[16
]
The dispute, both in the court a quo and on appeal, centres on the
proper interpretation of
section 98
of the NWA and, in particular, on
the legal consequences of non-compliance with
section 98(4).
It is
therefore necessary to set out the relevant subsections.
[17]
Section 98(2)
provides:
"A board
continues to exist until it is declared to be a water user
association in terms of subsection(6) or until it is disestablished
in terms of the law by or under which it was established, which law
must, for the purpose. of such disestablishment, be regarded
as not
having been repealed by this Act."
[18]
Section 98(3) provides, in relevant part:
"Subject to
subsection (4)-
(a) the name, area of
operation, management, property, rights, liabilities; obligations,
powers and duties of a board remain the
same as immediately before
the commencement of this Act; and
(b) this section does
not affect the continuity, status, operation or effect of any act or
omission of a board, or of any by-law
made by a board, before the
commencement of this Act."
[19]
Section 98(4) provides:
"Within six
months of the commencement of this Act, a board must prepare and
submit to the Minister a proposal, prepared according
to section 91,
to transform the board into a water user association."
[20]
Section 98(5) empowers the Minister to accept, amend or reject the
transformation proposal; section
98(6) deals with the declaration of
a water user association.
[21]
There is no express provision in section 98 that states what the
consequences are if a board fails
to comply with section 98(4),
either by not submitting a proposal at all or by submitting one late.
The section also contains no
explicit sanction - such as automatic
disestablishment - for non-compliance.
[22]
Two judgments are critical to understanding how section 98 has been
interpreted to date.
S
V MOSTERT AND ANOTHER
[3]
[23]
In
Mostert
the Supreme Court of Appeal had to determine, in a
criminal prosecution for unlawful abstraction of water, whether an
irrigation
board established under the Water Act 54 of 1956 continued
to exist and to exercise its powers after the NWA came into
operation,
and whether section 151 of the NWA applied within the
board's irrigation district.
[24]
The Court set out section 98(2) and described it as a "sunset
clause":
"Section 98(2) of
the 1998 Act is a 'sunset clause'. It provides:
'A
board continues to exist until it is declared to be a water user
association in terms of subsection (6) or until it is disestablished
in terms of the law by or under which it was established, which law
must, for the purpose of such disestablishment, be regarded
as not
having been repealed by this Act.'"
(para
12).
[25]
The Court further referred to section 98(3) and concluded:
"The
clear intention of these provisions is that existing water irrigation
boards should continue in operation until they are
restructured as
water user associations. (Although strictly speaking it should not be
taken into account in interpreting the Act,
this is confirmed by the
explanatory note to Ch 8 of the Act, into which s 98 falls.)"
(para 12).
[26]
Importantly, the SCA noted that the board in question had not
transformed within the six-month period:
"Notwithstanding
the six-month period prescribed by s 98(4), the complainant was
neither disestablished nor transformed into
a water user association,
and was still continuing to operate by virtue of the provisions of s
98(2) and (3) at
the time of the
Appellants' trial, some eight years after the 1998 Act had come into
operation. How this somewhat surprising state
of affairs came about
is, however, neither here nor there and, for present purposes, it
must be accepted that at all times material
to the charges brought
against the Appellants the complainant had continued to exist and to
operate with the obligations, powers
and duties it had enjoyed under
the 1956 Act." (para 13, emphasis added)."
[27]
The SCA held that the complainant irrigation board continued to exist
and to operate with its powers
and duties under the NWA,
notwithstanding non-compliance with section 98(4), and that the
criminal provisions of the NWA applied
in its district
CROCODILE
RIVER WEST IRRIGATION BOARD V ALLIED FARMS SA (PTY) LTD AND
ANOTHER
[4]
[28]
In
Crocodile River West
, Makgoba JP in this Division
considered a civil dispute about the validity of charges levied by
the Crocodile River West Irrigation
Board. Among the defences raised
was that the board had no authority post-NWA to levy such charges.
[29]
After setting out the historical legislative chain and section 98 of
the NWA, the Court held:
"
The clear intention of the provisions of section 98 of the NWA is
that the existing water irrigation boards should continue
in
operation until they are restructured as water user associations.
"
[5]
By
virtue of section 98(2) of the NWA, and subject to section 98(4) of
the NWA, the plaintiff continues to exist as an irrigation
board
until ft is declared to be a water user association in terms of
section 98(6) of the NWA, or until it is disestablished in
terms of
the repealed Water Act, which, for the purposes of such
disestablishment, is regarded as not having been repealed by the
NWA."
[6]
[30]
Makgoba JP emphasised the continuity of powers and duties:
"
The name, area of operation, management, property, rights,
liabilities, obligations, powers and duties of the plaintiff remain
the same as immediately before the commencement of the
National Water
Act. In
terms of
section 98(3)(b)
of the NWA the provisions of
section 98
of the NWA do not affect the continuity, status, operation
or effect of any act or omission of the plaintiff, or any bylaw made
by the plaintiff, before the commencement of the NWA."
[7]
The
plaintiff's rights, liabilities, obligations, powers and duties under
the repealed Water Act and the Regulations promulgated
thereunder,
remain in place until such time as the plaintiff is disestablished or
transformed to a water user association."
[8]
[31]
The Court concluded that section 98 was inserted precisely to prevent
a gap in liability and governance:
" I agree with
the submission made by Counsel for the Plaintiff that section 98 of
the NWA was inserted to prevent a situation
where water users in an
irrigation district could escape liability for water use charges and
other charges in sections 57 (1) and
57 (2) of the NWA until such
time as the irrigation board within whose district they fall, has
been either converted to, or replaced
by a water user association.
It was also inserted
to protect the existing infrastructure within such an irrigation
district and to ensure a smooth transition
in the new order.
The First Defendant's
interpretation of the provisions of the NWA would create the absurd
situation that water users within the
irrigation board's area of
jurisdiction would in the interim period be entitled to free water.
This is the very situation that
section 98 of the NWA seeks to
prevent.
It is trite law that a
statute must be interpreted in such a way that it will not have
absurd consequences.
A
sensible meaning is to be preferred to one that leads to insensible
or unbusinesslike results."
[9]
[32]
In
Crocodile River West,
the plaintiff board had in fact
submitted an application under section 98(4), and the transformation
process was pending. The Court
therefore dealt with a situation of
delayed transformation, not of complete inaction.
THE MAGISTRATE'S
JUDGMENT AND THE PARTIES' ARGUMENT
THE MAGISTRATE'S JUDGMENT
[33]
The magistrate's written judgment runs from pages 42-49 of the appeal
record.
[34]
He recorded that the Respondent (plaintiff) had instituted action for
outstanding levies; that the
applicant (defendant) wished to amend
its plea to raise a section 98(4) defence; and that the Respondent
objected on the basis
that the plea, if amended, would be excipiable
arid that the defence was bad in law.
[35]
The magistrate summarised the arguments of the parties, noting that:
•
The
applicant submitted that section 98(4) is peremptory and that the NWA
is silent on the consequences of non-compliance, leaving
a "novel"
question of statutory interpretation that should be ventilated.
•
The
Respondent submitted that the intended amendment is excipiable and
should not be allowed; it relied on the wording of section
98(2) and
on authorities such as
De
Klerk v Du Plessis
[10]
and
Nxumalo
v First Link Insurance Brokers (Pty) Ltd
[11]
to the effect that amendments which will render a pleading excipiable
ought not to be permitted.
[36]
The magistrate then undertook a textual analysis of section 98(2) -
(4), quoting those subsections
and canvassing the parties' opposing
interpretations.
[37]
At the heart of the judgment is the following passage, quoted by the
Appellant in its heads:
"However, the
court finds it very confusing to interpret. If the circumstances in
S98(3)(a) and (3)(b) is no longer the same
due to non compliance with
S98(4) what is the effect thereof. The Act is silent on this aspect
and open to interpretation. The
legislature did not expressly mention
that the irrigation board will cease to exist and will be divested of
its power, duties and
functions for failure to comply with S98(4).
The Act is vague with regard to this issue. The NWA of 1998 also
makes no provision
for any disestablishment of an irrigation board.
The Court cannot
assume, speculate or make any inferences of the legislatures
intention. The court cannot come to a conclusion based
on assumptions
and inferences which are not clear in the Act.
The court finds it
indeed very strange that the legislature did not enact a specific
clause to state what the consequences would
be for failure to comply
with S98(4). This was not a difficult task to do and it would have
prevented us from being in the predicament
we are presently facing.
It created uncertainty for all concerned."
[38]
Having thus characterised the statute as silent and vague, the
magistrate nevertheless concluded:
•
That
the applicant's intended amendment is excipiable, that the proposed
defence is bad in law, and that there is no defence disclosed;
•
That
the application for leave to amend should therefore be dismissed with
costs.
ARGUMENTS FOR THE
APPELLANT
[39]
In this Court, the Appellant's main submissions can be summarised as
follows:
•
The
proposed amendment merely amplifies a defence already pleaded in the
original plea and not attacked by exception. Paragraphs
1.3 and 1.4
of the original plea already raised non-compliance with section 98(4)
and questioned Pusela's authority; the amendment
does no more than
make the consequences of that non-compliance explicit.
•
Under
Moolman
v Estate Moolman
[12]
and the general principles governing amendments, the question is
whether the amendment raises a triable issue, not whether the
defence
is likely ultimately to succeed. Watermeyer J's well-known
formulation - that amendments will "always be allowed"
unless mala fide or causing irremediable prejudice - remains the
starting point.
•
The
magistrate misdirected himself by conflating the test for exception
with the test for amendment. He acknowledged statutory ambiguity
and
then paradoxically held that a pleading articulating one possible
interpretation is vague and excipiable. That internal inconsistency
shows that he approached the matter as if deciding the ultimate
merits, rather than asking whether the defence is manifestly
hopeless.
•
The
legal issue raised is a bona fide and substantial one: whether an
irrigation board that has never complied with section 98(4)-
despite
a peremptory duty to do so within six months of the NWA's
commencement - may, decades later, continue to exercise full
charging
powers as if it were operating under the old 1956 regime. That issue,
the Appellant says, goes to the heart of Pusela's
locus standi and
authority and should not be foreclosed at the pleading stage.
•
The
Appellant accepts the existence and relevance of
Mostert
and
Crocodile River West
but contends that they do not conclusively decide the consequences of
prolonged total non-compliance with section 98(4); rather,
they
address the continuity of boards in an "interim" context,
where transformation has been engaged or where the purpose
is to
avoid a regulatory vacuum.
•
Any
prejudice to Pusela can be cured by costs and, if necessary,
procedural directions; the refusal of the amendment, by contrast,
shuts out a central defence without trial.
ARGUMENTS FOR THE
RESPONDENT
[40]
The Respondent (in this appeal), in detailed and careful heads,
accepts the general principle that
amendments are ordinarily to be
allowed but emphasises the jurisprudence which holds that amendments
introducing a clearly excipiable
pleading should be refused.
[41]
It relies on authorities such as
De
Klerk
,
Nxumalo
and
Krischke
v Road Accident Fund
[13]
,
and others, as well as the commentary in Erasmus: Superior Court
Practice, for the propositions that:
•
Where
an amendment will render a pleading excipiable, the court should
generally refuse leave to amend.
•
Where
the objection to an amendment is that the resulting pleading will be
excipiable, the court hearing the amendment should decide
the
question of excipiability as a matter of law, rather than postponing
the issue to a later exception.
[42]
The Respondent further submits that the proposed amendment is not a
mere amplification but introduces
a qualitatively new defence: an
"
automatic loss of powers theory
", i.e. that failure
to submit a proposal under section 98(4) results in the board
automatically losing all its powers, duties
and functions under the
NWA.
[43]
On- the merits of section 98, the Respondent contends that this
theory is untenable in light of:
•
The
plain language of section 98(2) and (3), which preserves the board's
existence and powers until declared a water user association
or
disestablished under the old law.
•
The
line of authority represented by
Mostert
and
Crocodile River West
,
which affirm the continued existence and operative powers of
irrigation boards under section 98, even years after the six-month
period.
[44]
The Respondent quotes extensively from
Mostert
:
"Notwithstanding
the six-month period prescribed by s 98(4), the complainant was
neither disestablished nor transformed into
a water user association,
and was still continuing to operate by virtue of the provisions of s
98(2) and (3)at the time of the
Appellants' trial, some eight years
after the 1998 Act had come into operation ... it must be accepted
that at all times material
to the charges brought against the
Appellants the complainant had continued to exist and to operate with
the obligations, powers
and duties it had enjoyed under the 1956
Act."
[14]
[45]
It similarly relies on Makgoba JP's statements in Crocodile River
West that the board's "rights,
liabilities, obligations, powers
and duties ... remain in place until such time as the plaintiff is
disestablished or transformed
to a water user association" and
that section 98 was intended to prevent "free water'' in the
interim.
[46]
On that basis, the Respondent submits that the Appellant's defence is
squarely inconsistent with binding
SCA authority and with the
approach of this Division and is therefore bad in law. It contends
that, once the defence is seen as
fundamentally untenable, the
magistrate was correct to refuse an amendment that would serve only
to introduce an excipiable pleading
and precipitate an inevitable
exception.
ISSUES ON APPEAL
[47]
The following issues arise for determination:
•
Whether
the magistrate's order refusing the amendment is appealable, given
that it is interlocutory in form.
•
If so,
whether the magistrate misdirected himself in refusing the amendment
on the basis that the proposed defence is excipiable
and "bad in
law".
[48]
It is important to emphasise that this Court is not called upon at
this stage to decide finally whether
the Appellant's construction of
section 98 is correct. The question is whether that construction is
so clearly untenable that it
should not be allowed even to be
pleaded.
APPEALABILITY
[49]
The general principles governing the appealability of interlocutory
orders are well known and need
only be restated briefly. In
Zweni
v Minister of Law and Order
[15]
Harms AJA held that, as a rule, a judgment or order is appealable if
it has three attributes: it is final in effect; it is definitive
of
the rights of the parties; and it disposes of at least a substantial
portion of the relief claimed in the main proceedings.
[50]
Subsequent jurisprudence
[16]
has recognised that these attributes are not exhaustive or rigid, but
they remain central. The Supreme Court of Appeal has also
warned, in
more recent decisions, against lower courts using an open-ended
"interests of justice" standard outside the
constitutional
context as a free-standing basis for appealability, stressing that
finality and avoidance of piecemeal appeals remain
important policy
considerations.
[51]
In
TWK
Unterhalter AJA:
•
Re-centred
Zweni as the primary test for appealability.
•
Held
that adopting "interests of justice" as the foundational
criterion for appealability in the SCA would create an "unpredictable
and open-ended" regime and that the doctrine of finality must
remain the central principle in determining appealability.
[17]
[52]
A further remark by UNTERHALTER AJA in
TWK
which is in my view
is relevant in this appeal under consideration is the following:
"Even
if this is so as a matter of principle, as the defendant's Counsel
reminded us, a number of decisions of this Court have
been willing,
with different degrees of separation, to part from Zweni, or subsume
Zweni under the capacious remit of the interests
of justice. I do not
here essay a general account of appealability.
I
do affirm, though, that the doctrine. of finality must figure as the
central principle of consideration when deciding whether
a matter is
appealable to this Court. Different types of matters arising from the
High Court may (I put it no higher normatively)
warrant some measure
of appreciation that goes beyond Zweni or may require an exception to
its precepts. Any deviation should be
clearly defined and justified
to provide ascertainable standards consistent with the rule of law.
Recent
decisions of this Court that may have been tempted into the general
orbit of the interests of justice should now be approached
with the
gravitational pull of Zweni".
[18]
[53]
I understand the above-mentioned remark from
TWK
as follows:
•
Some
previous judgments have treated "interests of justice" as a
general appealability test, but that approach is not
the correct
baseline for the Supreme Court of appeal - and for that matter also
for High Courts to determine whether a judgment
is appealable to it.
•
Going
forward, finality under Zweni is central; only carefully defined,
exceptional categories may depart from it, and any such
departure
must be clearly justified and consistent with the rule of law.
[54]
It is further important to note that in the case of
TWK
both
parties tried to persuade the Supreme Court of Appeal to hear the
appeal in the interest of justice in order to bring the
disputes
between the parties to an end. This invitation, the Supreme Court of
Appeal declined and said that the matter was simply
not appealable,
and leave to appeal was consequently refused, and the appeal was
struck from the roll.
[55]
In the appeal under consideration, the same request from both parties
was directed.to the court, that
is, to hear the appeal in under the
broad rubric of the interest of justice.
[56]
The order under appeal is, in form, interlocutory: it is an order
refusing an amendment and does not,
by itself, dispose of the action.
[57]
Our question to counsel for the Appellant in court was whether it
would be possible to argue the essence
of the amendment that was
refused by the magistrate in any event at the end of the trial stage
because it raises purely a question
of law.
[58]
Counsel conceded in court that it would be possible to do so, but did
not take the issue any further
by further submissions.
[59]
There is, in my view, an answer to the suggestion that the Appellant
can simply raise the same point
as a matter of law at the end of the
trial. On a proper reading of the proposed amendment, the section 98
defence is not a free-standing
abstract proposition of law divorced
from factual context. It is a mixed question of law and fact. The
Appellant wishes to plead,
and then prove, factual allegations
concerning the Respondent's status, its historic establishment, its
failure to submit any proposal
in terms of section 98(4), and the
period over which that failure persisted. On those pleaded facts, it
then invites the court
to draw legal conclusions as to the
Respondent's authority and powers under the NWA.
[60]
If the amendment is refused, the factual foundation for that mixed
law-and-fact enquiry is not properly
laid in the pleadings. The
Appellant is constrained to litigate on a narrower factual ·and
legal footing than it contends
for. In such circumstances it is not
realistic to say that the entire defence can simply be resurrected
later as a "pure"
point of law. The refusal of the
amendment prevents the Appellant from placing its full factual case
on record in support of its
legal contention and thereby affects the
shape and conduct of the trial in a way that is, for all practical
purposes, final.
[61]
In my view, there are certain further considerations to be taken into
account.
[62]
The effect of the order is to preclude the Appellant from raising, in
the magistrates' court, a central
statutory defence concerning the
Respondent's authority and standing. It fixes, for the purposes of
that court, the permissible
scope of the plea.
[63]
The effect is final in relation to that defence: the Appellant
cannot, without leaving the magistrate's
court; introduce a pleading
that articulates its "automatic loss of powers" contention
under section 98(4).
[64]
Given the nature of the. Respondent's claim - for levies dependent on
the legal authority of the board
- the refusal of the amendment
goes.to a substantial component of the relief in issue. It directly
affects the Appellant's ability
to contest liability on the basis
that the plaintiff lacked lawful authority to charge and sue.
[65]
In these circumstances, I am satisfied that the order bears the
required attributes of finality in
respect of a substantial defence
and is therefore appealable within the Zweni framework. It is not a
mere case-management direction
or procedural convenience; it
determines, for all practical purposes in the court a quo, whether a
core defence may be advanced
PRINCIPLES GOVERNING
AMENDMENTS OF PLEADINGS
[66]
The basic principles governing the amendments of pleadings, are not
in dispute. In
Moolman
, Watermeyer J stated:
"The question of
amendment of pleadings has been considered in a number of English
cases ... and the practical rule adopted
seems to be that amendments
will always be allowed unless the application to amend is ma/a fide
or unless such amendment would
cause an injustice to the other side
which cannot be compensated by costs, or in other words unless the
parties cannot be put back
for the purposes of justice in the same
position as they were when the pleading which it is sought to amend
was filed."
[67]
This formulation has been cited with approval in our courts for
nearly a century and reflects the general
generosity with which
amendments are approached. The Constitutional Court has endorsed the
principle .that amendments should ordinarily
be allowed where they
serve to ventilate the real issues between the parties, subject to
considerations of mala fides and non-curable
prejudice.
[68]
It is also well accepted that an amendment will not be permitted
where the proposed pleading is clearly
bad in law - that is, where,
even if all facts alleged are proved, the claim or defence would
still not be sustainable. This is
the line of authority on which the
Respondent relies, including
De Klerk v Du Plessis
,
Nxumalo
,
Krischke
and others.
[69]
In
De Klerk
, Van Dijkhorst J said (at 431-44A):
''An amendment which
would render a pleading excipiable should not be allowed. Whether a
pleading would or would not become excipiable
is a matter of law
which should be decided by the Court hearing the application for
amendment. It would be incorrect, in my view,
to hold that it is
arguable that the amendment would not render the pleading excipiable,
allow it, and send the parties away to
prepare for another battle on
exception on the same point."
[70]
A similar approach was taken in
Nxumalo
[19]
,
where the court held that, where an amendment is opposed on the
ground that it would render the pleading excipiable, both the
application for amendment and the notice of objection based on
exception should be heard simultaneously and the Court should
determine
the issue there and then.
[71]
These cases do not detract from the general permissive approach to
amendments; rather, they recognise
that there is no point in
permitting an amendment that is clearly doomed, thereby forcing the
parties into unnecessary exception
proceedings and wasting costs.
[72]
The real difficulty lies in determining when a proposed pleading is
clearly bad in law and when it
raises a genuinely debatable point
which, though perhaps weak, should be allowed to tested at a trial.
That is a judgment call
requiring careful attention to the state of
the law and to the specific facts.
EVALUATION: WAS THE
MAGISTRATE CORRECT TO REFUSE THE AMENDMENT?
THE MAGISTRATE'S
REASONING
[73]
In my view, the magistrate misdirected himself in the way he
approached the question.
[74]
He expressly recorded that the NWA is silent" on the
consequences of non-compliance with section
98(4), that it is open to
interpretation, and that the legislature's intention is not clearly
expressed. He described it as very
strange that the legislature did
not spell out the consequences and concluded that this omission
created uncertainty for all concerned.
[75]
Those statements amount to an acknowledgement that the legal question
under section 98 is not straightforward;
that the text does nqt
conclusively indicate one answer; and that there is room for
interpretive argument.
[76]
Yet the magistrate then held that the Appellant's proposed
articulation of the consequences of non-compliance
- that the board
loses its powers, duties and functions - is vague and excipiable and
discloses no defence. He did so without engaging
with the distinction
between the existence of the board under section 98(2) and the extent
of its powers and duties under section
98(3) read with subsection
(4); and without analysing whether the Appellant's view, though
contestable, is necessarily untenable.
[77]
The effect is that the magistrate treated the difficulty of the
interpretive question as a reason to
exclude the defence from being
pleaded, rather than as a reason to recognise it as a triable issue.
That reverses the logic of
the Moolman approach and of the
constitutional preference for deciding disputes on their merits.
THE IMPACT OF
MOSTERT
AND
CROCODILE RIVER WEST
[78]
It is true that
Mostert
and
Crocodile River West
provide important context and that any court faced with an automatic
loss of powers theory must grapple with them.
[79]
Mostert
is binding authority of the Supreme Court of Appeal
that, notwithstanding non-compliance with section 98(4), an
irrigation board
established under the 1956 Act continues to exist
and to operate with the powers and duties it previously enjoyed, at
least for
purposes of applying the criminal provisions of the NWA.
[80]
Crocodile River West
, in turn, is persuasive - and for this
Division particularly influential - authority that, where a board has
complied with section
98(4) by submitting a transformation proposal
and has not yet been transformed or disestablished, its rights,
obligations, powers
and duties remain in place until such time as
transformation or disestablishment occurs.
[81]
These authorities significantly constrain the Appellant's position.
They make it difficult, to sustain
a blanket submission that any
non-compliance with section 98(4) automatically extinguishes a
board's powers and duties in every
respect and for all purposes.
[82]
But it does not follow that they answer exhaustively all questions
that may arise from prolonged non-compliance
by a particular board
over a particular period; nor do they necessarily preclude a court
from considering whether there may be
nuanced consequences, whether
grounded in interpretation, constitutional legality, or remedial
discretion, for decades-long failure
to initiate the transformation
process.
[83]
The Appellant's amendment, in its current form, undoubtedly adopts a
maximalist position: it pleads
that Pusela has no powers, duties
and/or functions under the NWA because it failed to comply with
section 98(4). The Respondent
rightly criticises this as a
far-reaching proposition, apparently inconsistent with
Mostert's
recognition that boards continued to exist and to operate with their
powers and duties eight years after the NWA's commencement.
[84]
Yet the task of this Court is not to decide whether the Appellant's
theory will ultimately withstand
exception or the scrutiny of trial.
The task is to decide whether, in the light of the statutory text and
existing case law, the
theory is so obviously unsustainable that it
should not even be allowed to be pleaded.
[85]
In my view, it is not. There is conceptual space, as the Appellant
urges, to distinguish between:
•
The
existence of the board as a juristic entity, preserved under section
98(2).
•
The
continuation of powers and duties "subject to subsection (4)"
under section 98(3); and
•
The
possible consequences, over a long period of complete inaction, of
failing to comply with a peremptory duty to initiate transformation,
particularly in relation to the enforcement of charges many years
after the statutory regime changed.
[86]
Mostert
and
Crocodile River West
speak strongly to
continuity; they do not, however, explicitly address whether there
might be limits to the indefinite exercise
of pre-1998 charging
powers by a board that has never even attempted to comply with
section 98(4).
[87]
The amendment opens the door for the Appellant to advance a further
line of argument which is not squarely
addressed in
Mostert
and
Crocodile River West
. It is that an indefinite "interim"
preservation of irrigation boards, with their full pre-1998 powers,
is conceptually
untenable because it effectively renders the
transitional regime permanent and makes it unnecessary ever to embark
upon the structural
transformation contemplated by section 98(4). On
this view, section 98(2) - (3) cannot be read as licensing the
perpetual exercise
of historical powers by a board that has never
meaningfully engaged the transformation duty.
[88]
Whether that line of reasoning is ultimately persuasive, and whether
it can be reconciled with the
statements in
Mostert
and
Crocodile River West
, is a matter for careful consideration on
a fuller record and after full argument. At this stage, however, it
suffices to say that
such a contention is not, on its face, frivolous
or inconceivable. It raises a serious question about the coherence of
an interpretation
that permits an "interim" status to
ossify into a de facto permanent dispensation, thereby undermining
the transformative
purpose of the
National Water Act.
[89
]
In my view, it would be premature at the amendment stage to conclude
that the Appellant is not even entitled
to plead this contention. The
proper question is not whether the court will ultimately accept the
argument, but whether it is so
clearly untenable that it should be
shut out at the threshold. Given the wording of
section 98
, the
acknowledged legislative silence on explicit consequences, and the
constitutional imperative that public powers be exercised
in
conformity with statutory design, I do not consider it possible to
say, at this early stage, that the Appellant's proposed argument
falls into that clearly untenable category.
[90]
That is the specific factual constellation alleged here. It raises
issues that go beyond the bare question
whether a board still
"exists" and whether some powers subsist; it implies
questions about the rule of law, constitutional
accountability in the
exercise of public power, and the legitimacy of claims based on a
statutory regime which the board has not
brought itself into
conformity with.
[91]
Whether those arguments will succeed, and whether they can be
reconciled with
Mostert
and
Crocodile River West
, is a
matter for detailed legal argument, at the trial, where both sides
can fully develop their submissions. It is not appropriate
to
pre-empt that evaluative exercise at the amendment stage by labelling
the defence "excipiable" simply because it is
ambitious and
difficult.
PREJUDICE
[92]
There is no indication in the magistrate's judgment, nor in the
record, that allowing the amendment
would have caused the Respondent
any prejudice of the kind that cannot be cured by costs or by
reasonable procedural directions.
[93]
Pusela has known of a
section 98
-based defence since the original
plea. In that setting, the general rule that costs and, if necessary,
postponement, will cure
prejudice remains applicable.
[94]
The refusal of the amendment, by contrast, shuts out a central
defence from being argued in court
a quo
, and, if the order is
not appealable or is upheld may effectively prevent the issue from
being properly ventilated at all. That
outcome sits uneasily with
both the
Moolman
test and with section 34 of the Constitution.
CONCLUSION AND ORDER
[95]
I therefore conclude that:
•
The
order of the magistrate refusing the amendment is appealable, as it
has a final and definitive effect on the Appellant's ability
to raise
a substantial statutory defence in the court a quo.
•
The
magistrate misdirected himself in refusing the amendment on the basis
that the proposed defence is excipiable, having acknowledged
that the
statute is silent and vague on the consequences of non-compliance and
that the issue is open to interpretation.
•
While
Mostert
and
Crocodile River West
significantly constrain the Appellant's position, they do not render
the proposed defence so clearly hopeless that it should be
excluded
at the threshold; the defence remains at least sufficiently arguable
to qualify as a triable issue for purposes of an
amendment.
[96]
It must be emphasised that this Court expresses no final view on the
correctness of the Appellant's
interpretation of section 98 or on the
validity of Pusela's charging powers. Those questions remain open for
determination in appropriate
proceedings, whether by exception or at
trial, where the interaction between section 98,
Mostert
,
Crocodile River West
and other constitutional and statutory
considerations can be fully ventilated.
IN THE RESULT, THE
FOLLOWING ORDER IS MADE
a)
The appeal is upheld.
b)
The order of the magistrate, Tzaneen, dated 8 October 2024 under case
no. 1612/2023, refusing
the Appellant's application for leave to
amend its plea and dismissing that application with costs, is set
aside and replaced with
the following:
"1. The
defendant's application for leave to amend its plea in accordance
with its notice in terms of Rule 55A(1) and (2) dated
3 June 2024 is
granted, and is granted the opportunity to file the amended plea
within 20 days after the date of this order.
2.The plaintiff shall,
if so advised, deliver any consequential amended replication or other
pleading within 20 days of service
of the amended plea."
c)
The costs of the application for leave to amend shall be costs in the
cause."
d)
The Respondent is ordered to pay the costs of the appeal, costs of
counsel shall be taxed
on scale C, as is contemplated in Rule
67A(3)(a).
G
J DIAMOND
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
I AGREE
JT
NGOBENI
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
LIMPOPO
DIVISION,POLOKWANE
APPEARANCES
For the Appellant
: Adv. AA BASSON
Instructed by
: THOMAS
&
SWANEPOEL INC
:
[email protected]
For the
Respondent: ADV
N FOURIE
Instructed by
: STEWART MARITZ
BASSON
:
[email protected]
Date heard
:
29 August 2025
Date delivered
: 17/02/2026
This
judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time for hand-down
of
the judgment is deemed to be 17/02/2026
[1]
2010
(2) SA 586 (SCA).
[2]
(4389/2019)
ZALMPPHC 63.
[3]
2010
(2) SA 586
(SCA) ("
Mostert
").
[4]
(4389/2019)
ZALMPPHC 63 (29 November 2022) (Limpopo Division, Polokwane, per
Makgoba JP).(''
Crockodile
River West
")
[5]
Par.
26
[6]
Par
27.
[7]
Par
30.
[8]
Par
31.
[9]
Pars
33 - 35.
[10]
1995
(2) SA 40
(T). ("
de
Klerk
")
[11]
2003
(2) SA 620
(T). ("
Nxumalo
")
[12]
1927
CPD 27.
("
Moolman''
)
[13]
2004
(4) SA 358 (W).
[14]
Par.
13.
[15]
1993
(1) SA 523 (A).
[16]
TWK
Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty)
Ltd and Others ZASCA 63 ("
TWK
");
2023 (5) SA 163
(SCA and H J v P J (285/2023) ZASCA 55 (19 April
2024).
[17]
Par
30.
[18]
(Emphasis
added.) Tn TWK Agriculture Holdings (Pty) Ltd v Hoogveld
Boerderybeleggings (Pty) Ltd NNO and Others the Supreme Court
of
Appeal draws a clear distinction between the test for appealability
to the Constitutional Court and the test for appealability
to the
High Courts and the Supreme Court of Appeal. In essence, it holds
that the Constitutional Court's formulation - that interlocutory
decisions are appealable if it is in the interests of justice - is a
standard that applies specifically to the Constitutional
Court. See
in particular paragraphs 26 and 27 of that judgment.
[19]
2003
(2) SA 620
(T).