Minister of Water Affairs v Mostert and Others

• Jurisdiction: South Africa
• Judge: Beyers ACJ, van Blerk JA, Rumpff JA, Wesssels JA and Potgieter JA
• Judgment Date: 01 September 1966
• Court: Appellate Division

E Wessels, J.A.:

The appeal by the appellant and the cross-appeals by the first and third respondents relate to the several amounts of compensation determined by THERON, J., in the Transvaal Water Court in accordance with the provisions of sec. 60 (4) (a) of the Water Act, 54 of 1956, as amended, as being payable by the appellant in respect of the F expropriation on 14th September, 1962, of land owned by the first respondent and rights in respect thereof which vested in the second and third respondents respectively. The cross-appeal noted by the second respondent was not proceeded with.

For the sake of convenience I will refer to the appellant as the Minister, to the first respondent as Mostert, to the second respondent as the Marana partnership and to the third respondent as the Ingwenya G company. The respondents will be referred to as such where they are dealt with as a group.

The factual background to the proceedings before the Water Court is briefly as follows. During the year 1935 Mostert acquired three farms in H terms of the provisions of the Land Settlement Act of 1912, namely. Intulembi, Marana and Ingwenya, which were riparian to the Pongola River, a public stream which rises on the edge of the highveld plateau near Wakkerstroom, Transvaal. It drains eastwards towards the Indian Ocean. In the area where the farms are situated (referred to in the evidence as the Gollel area) the river is the provincial boundary between Natal and the Transvaal. According to the original diagrams the three farms in question consisted of rectangular blocks of land with parallel boundaries running south from the Swaziland border to the northern bank of the Pongola River. Proceeding downstream the farms were in

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the following order, namely, Intulembi, Marana and Ingwenya. Immediately to the east of Ingwenya there are two non-riparian farms, Devil's Dive and The Craggs, and further downstream the riparian farm, Mohla, which adjoins Ingwenya. The farm Mohla is at the foot of the Lebombo A Mountains, a range of mountains running from south to north. When the Pongola reaches the farm Mohla it swings to the south and flows past the following farms, namely, Middlein, Maryvale, Genda, Karain, Idlewild, Montana and Lebombospoort, which are situated on the left (i.e. eastern) bank of the river. On the farm Lebombospoort the Pongola once more B swings to the east and passes through a gorge in the Lebombo Mountains, referred to as Lebombospoort. This is the site of the Pongolapoort Dam which was already under construction when the matter was heard before the Water Court. After passing through this gorge the Pongola swings northwards and crosses a broad low-lying plain, known as the Makatini Flats. The river eventually crosses the boundary between C the Republic of South Africa and Moçambique before reaching the Indian Ocean. The above-mentioned farms, including those which were owned by Mostert, fall within the area which will provide the storage basin for the Pongolapoort Dam. The three farms owned by Mostert will in due course become totally submerged.

D According to the evidence, the main purpose of the dam is to utilise the resources of the Pongola River for the cultivation of sugar cane under irrigation in the area to the east of the Lebombo Mountains in order to meet the steadily increasing demand for sugar in the Republic.

On 7th August, 1946, Mostert obtained a Crown grant in respect of the E three farms against payment of the purchase price of R1,348.58 - a figure which bears no comparison with land prices current at the date of expropriation. The prevalence of malaria and ngana militated against progressive development in the area, which was used mainly for grazing purposes. By about the year 1955 these diseases had, however, been largely eradicated, and conditions generally became favourable for F development. During the year 1960 Mostert caused the three farms to be consolidated in terms of the provisions of sec. 40 of Act 47 of 1937. At the same time a certificate of registered title was issued in terms of the provisions of sec. 43 of the same Act. In the result the original three farms were amalgamated and then sub-divided into three rather irregularly shaped farms, namely,

1.

G Portion 1 of the farm Consolidated 'Intulembi' No. 76 (measuring 299.5399 morgen);

2.

Portion 2 called 'Marana' of the farm Consolidated 'Intulembi' No. 76 (measuring 615.5107); and,

3.

H The remaining extent of the farm Consolidated 'Intulembi' No. 76, known as 'Ingwenya' (measuring 645.96 morgen).

In the evidence the above-mentioned farms are referred to as 'Intulembi', 'Marana' and 'Ingwenya' respectively, and I will hereafter also refer to them by those names. The main effect of the amalgamation and sub-division of the original farms is that Intulembi has no river frontage, although it retained riparian rights. A substantial area of the original farm Intulembi, including the whole of its river frontage, now forms part of Marana. A portion of the river frontage of the original

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farm Ingwenya has also been added to Marana. The last-mentioned farm still extends to the Swaziland border, but for about half that distance A it is in the form of an irregularly shaped wedge separating Intulembi, which lies to the west, from Ingwenya, which lies to the east thereof. This wedge shape was caused by taking areas of land from the original farm Marana and incorporating them in Intulembi and Ingwenya respectively.

For some number of years after Mostert acquired the farms in 1935 very B little was done in regard to their development. By the year 1949 Mostert was, however, considering the advisability of an irrigation scheme for his farms. He had in mind the cultivation of sugar cane, and his application for a quota to deliver cane to a mill was granted at the beginning of the year 1950. Mostert did not continue with the proposed C irrigation scheme and his sugar quota was eventually cancelled in July, 1955. In part at least, the delay in developing the farms may be ascribed to the uncertainty which prevailed in regard to the State's plans to construct a large storage dam to utilise the resources of the Pongola River. The possibilities of the Pongolapoort-Makatini Flats project first received serious attention in the late 1920s. A final decision to proceed with the project was, however, only taken at the D beginning of the year 1960. For some years prior to this decision being taken, farmers were being advised to continue with their development programmes and to ignore rumours regarding the contemplated construction of the Pongolapoort Dam. Mostert was no doubt persuaded that this was E sound advice and decided to accelerate the rate of development of the farms. Because of his various commitments Mostert was unable to give his undivided personal attention to the development of the farms. During the year 1953 he leased 338 morgen of the original farm Ingwenya to one Bekker, who proceeded to clear a portion thereof where to bacco was planted. Some time thereafter all the lands on the farms (excluding the F area leased to Bekker) were leased to one Maree, who gradually developed an area of land on the original farm Marana. He started planting sugar cane under spray irrigation, the water being pumped from the Pongola River. Bekker was unable to fulfil his obligations under the lease and the agreement was consequently terminated.

G During the year 1955 Mostert consulted Dr. Kokot, a consulting engineer, in regard to an irrigation scheme for the three farms. He furnished a detailed report on 27th January, 1956, in which he recommended a scheme which was to be developed in stages. In his report Dr. Kokot refers to the fact that, although the water would have to be raised to a considerable height, the topography of the three farms was H 'extraordinarily favourable for irrigation by pumping'. In so far as the availability of water from the Pongola was concerned, he reported that it was certain

'that for by far the greater part of the year there will be ample water for pumping for this scheme'.

Dr. Kokot was aware of the possibility that the farms might be expropriated if the Pongolapoort Dam project were to be carried out. He pointed out that there was no certainty whether it would be undertaken and, if so, when the work would commence. He advised Mostert to carry on with his development and referred to the fact that Mostert would be

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entitled to compensation if the Minister were to decide eventually to proceed to expropriation. In my opinion he correctly summarised the position as follows in his report:

'If no decision is forthcoming from the Government regarding the appropriation of the land the owner is very well protected in regard to A any improvements undertaken by him. It should be pointed out that the owner has no means of recovering any loss suffered by him as a result of his own failure to develop and utilise the land for fear that it may at some time be appropriated by the State. Numerous cases can be quoted where surveys were carried out many years ago yet no scheme has been built. Even public statements by Ministers to the effect that a certain scheme would be built in no way affects the owner's right to receive compensation for improvements. There are even instances where schemes actually figured on the Parliamentary estimates and still were never constructed.'

B Until his retirement Dr. Kokot was an officer in the employ of the Irrigation Department, and he was well qualified to express the opinions he did, and it is not surprising that Mostert felt that he could rely thereon. During the period from 1956 to the date on which the C expropriation became effective in 1962 the development of the farms was considerably accelerated, and a substantial sum of money was devoted to the task...