Drogen Investments CC v Grundling
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Gumede AJ |
| Judgment Date | 10 March 2023 |
| Docket Number | 1667/2022 |
| Hearing Date | 27 October 2022 |
| Court | Mpumalanga Division, Mbombela |
Gumede AJ:
2023 JDR 0736 p2
Gumede AJ
This is an application for a final relief in a form of a mandatory interdict, to prohibit the respondent from demolishing a dam or interfering with water supply from the canal to the dam and dam to applicant's pumphouse. Applicant also seeks to interdict the respondent from interfering with the access road to and from the water supply system within the respondent's property.
BACKGROUND:
The applicant and respondent are registered owners of neighboring properties which share a common boundary.
Applicant contends that its property has no water supply and has to rely on the water obtained from the respondent's property for its water needs.
Applicant alleges that in 1997, the previous owner of respondent's property, gave it (applicant) permission to install a pipeline from the dam to a pump house. Applicant's guests and staff, make use of an access road to and from the respondent's property, to attend to the service and repair of the water system which is situated at the respondent property.
According to the applicant, several other farmers in the area use the canal road to reach the main road leading to Nelspruit.
2023 JDR 0736 p3
Gumede AJ
Applicant alleges that prior to taking transfer in 2022, the respondent informed it that he intended to demolish the dam and prevent anyone from using the access/canal road. Following this information, the applicant instructed its attorneys to send a letter to the respondent "cautioning him against taking the law into his own hands" by demolishing the dam and preventing use of the access road.
In response thereto, the respondent wished them luck in preventing him from doing as he pleases with his property.
In an email dated 18 March 2022, the respondent gave the applicant 30 days to remove all pipes from the respondent's property and 90 days to remove the driveway.
Applicant thereafter approached the court, seeking an interdict to prevent the respondent from interfering with the dam and access road.
In response to the application, the respondent raised two points in limine as follows:
Respondent contends that there was never an intention on his part to commit spoliation as such, there was no need for this application at all as the matter should have been mediated.
2023 JDR 0736 p4
Gumede AJ
Respondent also raised material non joinder and contends that applicant failed to join the Minister of Water and Sanitation, the Inkomati-Usuthu Catchment Management Agency and the Friedenheim Irrigation Board, who are the owners of the water canal in the respondent's property with a registered servitude on the respondent's property.
The respondent has since abandoned the argument on non-joinder. At hearing of this matter, the respondent submitted that the argument on mediation is not dispositive of the application but addresses the issue of costs.
On the question of consent to use the water, the respondent does acknowledge that the previous owner of the property, informed him that he had given permission to the applicant to use the access road to inspect the dam and pipeline. He however alleges that this permission was of a temporary nature and capable of cancellation upon notice as the permission was granted whilst the applicant was sorting out its own water supply from a borehole in its own property. The respondent contends that the balancing dam which supplies the applicant, only fills with water which may from time to time overflow from the canal and could never have been regarded or used as a sustainable water supply for domestic purposes.
The use of the road is also said to be a temporary measure to enable the applicant to gain access to the dam and pipeline leading to its property and also allow the
2023 JDR 0736 p5
Gumede AJ
applicant to gain access to its property until it constructs a roadway from the road bordering its property as the property of the applicant is not landlocked.
It is common cause that no servitude was ever registered by the applicant over the respondent's property.
ISSUES FOR DETERMINATION:
This court is required to determine whether the applicant has satisfied the requirements for granting of an interdict.
The requirements for a final interdict are trite and were confirmed by Froneman J in the Constitutional Court in the matter of Masstores (Pty) Limited v Pick n Pay Retailers (Pty) Limited [1] as follows, (a) a clear right; (b) an injury actually committed or reasonably apprehended; and (c) the lack of an adequate alternative remedy.
It is common cause that various correspondence preceded the launching...
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