Delport v Kopjes Irrigation Settlement Management Board

• Jurisdiction: South Africa
• Citation: 1948 (1) SA 258 (O)

Delport v Kopjes Irrigation Settlement Management Board
1948 (1) SA 258 (O)

1948 (1) SA p258

Citation	1948 (1) SA 258 (O)
Court	Orange Free State Provincial Division
Judge	De Beer J
Heard	September 18, 1947; September 19, 1947
Judgment	November 11, 1947

Flynote : Sleutelwoorde

Fences — Fencing Act, 17 of 1912 — Agreement on 'fair give-and-take line' along river forming boundary of holdings — Section 32 of Act — Agreement must be between owners — Who is 'Owner' — Section 2 — Whether agreement binding in perpetuity. — Arbitration board under Third Schedule to Act — Alleged excess of jurisdiction — Extrinsic evidence admissible — Award of arbitrators — Not certain and final — Court may refer back.

Headnote : Kopnota

An arbitration board set up under the Third Schedule to the Fencing Act, 17 of 1912, has jurisdiction to determine the dispute, when the owner of a holding has called on his neighbour to agree on a fair give-and-take line to be fenced as the boundary line between the holdings along a river, and the neighbour refuses on the ground that there is already a binding agreement in existence. If it decides against the contention that a binding agreement is in existence, the arbitration board should go on to determine the boundary line between the holdings in terms of section 32 of the Act.

1948 (1) SA p259

In deciding whether an arbitrator has exceeded his jurisdiction in making an award, the Court is not confined to the record of the arbitration proceedings but may admit extrinsic evidence.

Where an award of an arbitrator is not certain and final, the Court is not bound to set aside the whole award, but has a discretionary power under the common law to refer the award back to the arbitrator to be rendered final and complete.

Douglas v Pin (1903, T.S. 306 at p. 310) and Basson v Herman (1904, T.S. 98 at p. 100) followed.

In 1913, an agreement on a fair give-and-take line to be fenced as the dividing line along a river bank between farm F, the property of respondent board, and farms M (1) and D was entered into by the resident engineer of respondent board and one S. S. was then the registered owner of M (1) and of a one-quarter undivided share of D, and was usufructuary of the remaining three-quarters of D. Thereafter the two farms M (1) and D were consolidated and sub-divided into three farms, one of which, M (2), was transferred to applicant M.E.D.

Held, that as S was not the 'owner' of farm D, as defined in section 2 of the Act, when the agreement was made, the whole agreement was not made in terms of section 32 of the Act, and was not binding on the successors in title of the parties.

Quaere: Whether even if a boundary line has been fixed under section 32 of the Act such an agreement is necessarily perpetually binding. Such a line must be a 'fair' give-and-take line and if, for example, a river changes its course so that an agreed boundary line completely deprives one party to the agreement of access to the river, he or his successors would be entitled to review the agreement on the ground that it was unfair.

Case Information

Application to review the proceedings in, and to set aside the decision of, an Arbitration Board. The facts appear from the reasons for judgment.

N. J. Grobler, for the applicant: Applicant's case rests on two grounds, firstly prescription, and secondly, that in any event the agreement between the original owners of the farms in question determined a fair boundary line between the two farms. As to the first ground, if it is found, as contended, that an agreement was entered into by the original owners, then as it was entered into in 1913 and has been observed by the original owners and their successors for at least thirty years without any dispute as to the boundary line then established, prescription operates in favour of applicant. As to the second ground, the agreement between the original owners was entered into in terms of sec. 32 of Act 17 of 1912, and determines a fair boundary line between the two farms, and therefore must continue to exist. Act 17 of 1912 was not intended to prejudice one party in favour of another but merely to give effect to a fair boundary line between contiguous

1948 (1) SA p260

farms which would not prejudice either party; the agreement between the original owners in 1913 gave effect to this intention of the Act. The result of the observance, without any dispute by all interested parties, of the agreement of 1913 is that the boundary line established by that agreement is, in terms of sec. 32, final and binding on the respondent Board, and it therefore had no power to order that a new fair boundary line should be fixed, cf. Halgreen v Theron (1927, E.D.L. 417). As there was no dispute between the owners, the respondent had no power to act under sec. 32; cf. Barkly East Municipal Council v Kriel (1915 CPD 535 at p. 538); Sieberhagen v de Villiers (1914 CPD 145); Bosman v Bosman (1914 TPD 542); von Und zu Bentheim v von Oppen and Others (1938, S.W.A. 54). Respondent Board was functus officio after announcement of his decision; see Minnaar v Retief (1924, E.D.L. 146 at pp. 148 - 9); so that if this Court upholds applicant's contentions the matter cannot be remitted to respondent for re-consideration; cf. Hogg, Arbitration (pp. 117 and 151), Redman, Arbitration (p. 124). In any event, respondent's decision that a new fair boundary line must be established, being, for the reasons stated, a decision which offends against sec. 32 is not binding; cf. Union Government v Union Steel Corporation (1928 AD 234); Goldfields Investment Ltd. and Another v City Council of Johannesburg and Another (1938 TPD 551 at p. 557). The respondent's decision is not clear and certain and is not final on the only kind of point in issue that a Board can consider under sec. 32 and decide; see Meyerowitz v Lieberman, N.O. (1940, W.L.D. 40); Hogg (supra, pp. 134 - 5, 140, 141); Redman (supra, pp. 141 - 8). The decision is not in accordance with law; see Hogg (supra, p. 127); Selby v Whitbread (1917, 1 K.B. 736); Redman (supra, p. 152). If the decision or the grant is defective it can be set aside; see Hogg (supra, p. 146); Redman (supra, pp. 190,193). If there is a dispute as to whether the arbitrators were authorised by the parties to decide a case, the Court and not the parties must settle the dispute; cf. Attorney-General of Manitoba v Kelly (1922, 1 A.C. 268); King v Duveen (1913, 2 K.B. 32 at p. 36). Arbitrators may not make any new award without the consent of the parties. and they may not review an award already made by them or correct such an award as exceeding their legal capacity or as being otherwise defective; see Redman (supra, p. 124). For the circumstances under which a Court will refer a matter back, see Melman v Engelman (1940, W.L.D. at pp. 153 et seq.).

1948 (1) SA p261

As to costs, the successful party is awarded costs; see Jones and Buckle, Civil Practice of the Magistrate's Courts of South Africa (4th ed., p. 94); Fripp v Gibbon (1913 TPD 153); Pyott, Ltd v C.I.R. (1925 AD 298); Wade v Mendelsohn (1936 CPD 540). The rule can only be departed from for good reasons; see Brickman's Trustee v Transvaal Warehouses, Ltd. (1904, T.S. 548); Brink v Carolissen (1945 CPD 225 at p. 228). As to costs of appeal, see Jones and Buckle (supra, p. 186). If there is a substantial variation of the lower Court's judgment, costs of appeal are awarded to the appellant; cf. Waring & Gillow, Ltd v Sherborne (1904, T.S. 348); Cohen v Sherman (1941 TPD 134 at p. 140); Estate Obermeyer v Estate Wolhuter (1928 CPD 32); Muller v Burger (1933 CPD 113).

C. P. Brink, K.C., for the respondent: Respondent was not bound by the de facto boundary line because it was not a boundary line in terms of sec. 32. The fact that objection to the boundary line had not been taken earlier is no proof that it was a boundary line within the meaning of sec. 32 as having been agreed upon. The necessity of changing the line first became apparent when the owners, Erasmus and Steyn, changed their boundary line. In any event, the onus is on applicant to show that the boundary line in question is a boundary line in terms of the Act. The boundary line agreed on must be a fair boundary line in terms of sec. 32, and if there is not such a boundary line, one must be determined under the section. Even if the boundary line in the present case was one in terms of sec. 32, it would not have been binding on respondent, as respondent was not an owner of one of the farms affected when the agreement regarding the boundary line was made; respondent became owner as a result of the passing of Act 38 of 1935 and received transfer of title to it in 1943. Halgreen v Theron (1927, E.D.L., pp. 420 - 2) is in conflict with the provisions of sec. 32; cf. Norton v Crooks (1914, E.D.L. 532). Even as between the original parties, the agreement is not necessarily always binding; a change of circumstances may entail a variation of the original boundary line so that it may be a fair line; cf. Stow v Hurd (1916, O.P.D., at pp. 205 - 6); Lechoana v Cloete (1925 AD 546); Hall, Servitudes (p. 130). Whenever a boundary line is agreed upon, the respective owners do not intend to give away any of their property and that is the view of the relevant legislation; cf. sec. 32. Prescription is not here possible in view

1948 (1) SA p262

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