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Last Updated: 11 August 2004
THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Case number: 087/2003
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
[1] This is an appeal from a spoliation order granted by Van der
Reyden J, sitting in the Natal 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-Paris 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
Water 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 cultivate sugar cane on their
farms.
They were all formerly members and water users of the appellant when it was an
irrigation board and had applied 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the Water Act 54 of 1956, which was repealed by the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 appellant became a water user association, all the respondents
automatically, in terms of paragraph 7.2 a of its constitution, became
members.
[4] A dispute has arisen between the respondents and the
appellant as to the legality of a portion of the water charge raised and
assessed
by the appellant on its members. The portion in question related to the
costs of financing the construction of the Paris-Bivane dam.
The appellant has
sought to recover from its members an amount of R800-00 per hectare per annum as
a dam financing component of the
water charge. The respondents contend that they
are obliged to pay only R240-00 per hectare per annum and that the appellant
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 respondents by suing them in the Pongola
magistrate’s
court for the amounts allegedly due. These actions were
subsequently withdrawn, whereupon the appellant issued 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, which it did on 1 February
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:
‘(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 opportunity
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 respondents had been exercising rights to
water without disturbance and that the exercise of those rights
fell within the
concept of quasi-possessio. He then proceeded to consider whether the
deprivation by the appellant of the respondents’ ‘possession’
had taken
place illegally. He accepted the argument advanced before him by
counsel for the respondents that it was for 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 powers 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 this 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 covered
by the statute relied
on. Pointing out that it was common cause that there 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 showing 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;
(2) because the appellant was covered by the powers conferred upon
it by section 59(3) of the Act, either because the onus rested upon the respondents to prove that the 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 contention 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 mere 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 membership, 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 decision of this
Court in Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA), counsel
submitted 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 the
contract between the appellant and each member in terms of which the appellant
undertook to supply
water was similar in all material respects to common
contracts for the supply of water, electricity and telephone 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 the water supply,
no
spoliation had occurred.
[13] Counsel for the appellant submitted
further that if the Bon Quelle decision was not distinguishable, then the
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 the 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 the acts
by
which he was deprived of possession were unlawful. According to counsel, the
Sillo decision, which was not mentioned in the later George
Municipality case, was to be preferred.
[15] Finally, as
indicated, counsel contended that, if the onus to prove that the action taken by
the appellant was covered by the Act
rested on 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 they represented had
been deprived of rights capable of
protection by spoliation proceedings and that it was incorrect to describe such
rights merely
as contractual rights. It was also contended that, even though 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
rights 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
respondents 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
reliance 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 respondents 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 considered, in my view, is whether the rights on which the
respondents relied were merely contractual and
whether the Xsinet
decision can be applied. In my opinion, it is not correct to say that the
rights in question 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
schedule prepared under section 88 of that Act. These rights were clearly not
merely 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 water which belonged
to the individual respondents and the entities represented by the other
respondents, in so far as
they were replaced by or, perhaps more accurately put,
subsumed into rights under the Act, cannot be described as mere personal rights
resulting from contracts with the appellant. 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 bandwidth
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
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
possession 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 paragraph [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 that 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 previous 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 counsel for the appellant and I am
satisfied that it cannot
be held that the decision in question was clearly
wrong.
[21] I am accordingly of the view that the court a quo
correctly held that rights capable of protection by spoliation proceedings
had been interfered with in the present case.
[22] It is accordingly
necessary to consider whether such interference is to be regarded as lawful so
that no spoliation can be held to
have taken place. In this regard the first
question 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
provisions 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 interpreted
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 water 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 circumstances or because, if there is no such conflict we
think it
clearly wrong), we must hold that the onus rested 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 aggrieved party’s
cattle
to the pound. [25] The facts in Sillo’s case were that the
respondent, who was a farmer, summarily dismissed the appellant, 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 against the respondent. He failed in the
provincial division and his appeal to this Court was dismissed.
The basis for
the decision appears in the following 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. 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
unlawfully 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 the 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 land 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 his own hands he was held
not to be guilty of spoliation. No such considerations apply here. It cannot
be
said that, by locking the sluices, the appellant 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 situation 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 spoliation order has to show that
the
deprivation of which he complains was wrongful and unlawful was obiter
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 not 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
before 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 was
discharged. As counsel for the respondents (correctly in my view) submitted, in
view of
the fact that the question as to whether the unpaid portion 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 concerned 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 employment of two counsel.
.................
IG FARLAM
JUDGE OF APPEAL
CONCURRING
HOWIE P
BRAND JA
JONES AJA
VAN
HEERDEN AJA
SAFLII:
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