Supreme Court of Appeal of South Africa
MEDIA SUMMARY – JUDGMENT DELIVERED IN SUPREME
COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
26 MARCH 2004
Status:
Immediate
Please not that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal
IMPALA WATER USERS ASSOCIATION v PIET ERASMUS
LOURENS N.O AND 20 OTHERS
On 26 March 2004 the Supreme Court of Appeal dismissed with costs an
appeal brought by the Impala Water Users Association against an order
granted by Van der Reyden J in the Natal Provincial Division ordering it
to remove locks from sluices which allowed the flow of water from the
water canals of the Bivane-Paris dam near Pongola in KwaZulu Natal to
reservoirs on the farms of certain members of the association who grow
sugar cane one the farms and need water for this purpose.
The association had put the locks on the sluices so as to restrict the flow
of water to the farms because, so it alleged, the water use charges owed
by the farmers were unpaid. The farmers had argued that the water use
charges claimed by the association were not legally payable by them
because the association had included an amount of R560 per hectare per
year in respect of a dam financing component which the farmers said was
not legally recoverable from them. Although cases were pending in the
Natal High Court between the association and some of the farmers in
which the legal enforceability of the dam financing charge was going to
be considered, the association decided in January 2003 to use its powers
under section 59(3) of the National Water Act to restrict the flow of water
from the Bivane-Paris dam to the farms of it’s members who had
withheld the dam financing component of the water use charges payable
by them. On 1 February 2003 the association’s servants locked the
sluices. An urgent spoliation application brought by the farmers against
the association for the removal of the locks was brought on the following
day and granted on 14 February 2003.
The Supreme Court of Appeal rejected the association’s contention that
the farmers’ rights were merely contractual rights which could not be
protected by spoliation proceedings. It also held that the association could
not use its powers under section 59(3) of the National Water Act to
restrict the supply of water to a property because water use charges had
not been paid unless it could show that the water use charges were legally
due and that it had not succeeded in doing so in the present case.