Ex parte Minister of Irrigation

• Jurisdiction: South Africa
• Judge: Herbstein J
• Judgment Date: 01 April 1948
• Citation: 1948 (2) SA 779 (C)
• Hearing Date: 10 March 1948
• Court: Cape Provincial Division

Ex parte Minister of Irrigation
1948 (2) SA 779 (C)

1948 (2) SA p779

Citation	1948 (2) SA 779 (C)
Court	Cape Provincial Division
Judge	Herbstein J
Heard	March 10, 1948
Judgment	April 1, 1948

Flynote : Sleutelwoorde

Water — Irrigation Board creating 'storage and diversion works' on a farm — Servitude created by notarial deed by owner of farm in favour of Board — Effect of — Act 8 of 1912, section 17 — Effect of — Subsequent disestablishment of Board — Effect of.

Headnote : Kopnota

In 1916 the M. Irrigation Board, after creating certain 'storage and diversion works' on the farm B., had entered into a notarial deed with the owner of the farm whereby servitutal rights were purported to be created of abutment, storage, and aqueduct over the farm B. in favour of the Board and its successors in title in respect of the selfsame works. Incidental servitutal rights were also created by the deed granting the right of access to, and to take materials from, the farm for the maintenance and repair of the work.

Held, that in so far as the notarial deed purported to create servitutal rights of abutment, storage and aqueduct, it was ineffectual as the Board was already by virtue of Act 8 of 1912, section 17, the owner of the actual land on which the works were erected and could not create a servitude in its own favour over its own land.

Union Government (Minister of Justice) v Bolam (1927 AD 467), applied.

Held, further, that in so far as the servitutal rights of access and to take materials were concerned, the deed created real servitudes over the farm B. in favour of the Board and its successors in title in its capacity as owner of the land on which the works were situated.

Held, further, on the disestablishment of the Board in 1941, that the actual land on which the works were situate together with the works themselves and the real servitudes of access and to take materials, and together with a certain piece of land which the Board had purchased and had registered in its name, had all become bona vacantia and as such the property of the Union Government.

Case Information

Application for a declaratory order. The facts appear from the reasons for judgment.

P. J. Wessels, for the applicant: The ownership of the works vested in the Board, see Act 8 of 1912, sec. 17 read with sec. 2; and consequently the rights of ownership in the land itself occupied in connection therewith also vested in the Board. See Union Government v Bolam (1927 AD 467). Servitudes constituted in favour of the Board were real servitudes and enured for the benefit of land included in the irrigation works; they therefore followed such land and were not extinguished upon dissolution of the Board. See Hall and Kellaway, Servitudes, pp. 2, 7.

1948 (2) SA p780

Failing any person with a lawful claim against the Board, the property of the Board upon its dissolution became bona vacantia and ownership vested in the State. This applies to all property of the Board, the general principle being that as soon as a corporation ceases to exist its property goes to the State as bona vacantia. See Ex parte Sprawson (In re Hebron Diamond Syndicate) (1914 TPD 458); Ex parte Wemmer Gold Mining Co. Ltd. (1906, T.H. 172); Ex parte National Bank of SA Ltd. (In re B. A. Meintjies Ltd.) (1924, W.L.D. 64); Ex parte Liquidators Lime Products (Pty.) Ltd. (1942 CPD 402); Ex parte White, N.O., Smit, N.O. (1942 CPD 414); Ex parte Farwood (1948 (1), S.A.L.R. 483); Pyemont, Company Law, p. 329; Ex parte Yelland & Co. (Pty.) Ltd. (1934 NPD 158).

C. G. Hall, K.C., for the respondent: See the definition of 'irrigation work'. The servitudes were personal. See Willoughby's Consolidated v Copthall's Stores (1913 AD 281); Dreyer v Ireland (1874, Buch. 201). The goods are not bona vacantia. The Court has a discretion.

Wessels, in reply.

Cur adv vult.

Postea (April 1st).

Judgment

Herbstein, J.:

By Proclamation dated 31st March, 1913, the Maraisburg Irrigation Board was duly established in terms of secs. 81, 83 and 84 of Act 8 of 1912. The petition does not set out the facts very clearly, but it would seem that in 1915 the Board entered into negotiations with the executor in the estate of the late Christian Albertus Hattingh, which owned the farm Bushman's Kraal, for the purchase of a piece of land measuring 562 square roods and 127 square feet. The date - 1915 - is assumed because the sub-divisional diagram is dated March, 1915. Transfer of the property, which is described as

'Certain piece of perpetual quitrent land situate in the division of Maraisburg (formerly Cradock) being Lot B of Bushman's Kraal, a portion of the farm Bushman's Kraal (Folio 1074) granted to Christian Albertus Hattingh on 17th May, 1878, measuring 562 square roods and 127 square feet,'

was passed to the Board on 26th June, 1917.

On 15th July, 1916, however, before the notary, Septimus Vermaak, a notarial deed of servitude was entered into between

1948 (2) SA p781

Herbstein J

the executor in the estate of the late Christian Albertus Hattingh and the Board. The preamble of this deed reads:

'And the appearers declared that whereas the said Maraisburg Irrigation Board in the exercise of its lawful powers has constructed a weir across the Vlekpoort River so as to divert the water at a point on the said farm 'Bushman's Kraal' as per diagram attached and has constructed two furrows or canals one on either side of the said Vlekpoort River for the purpose of conducting the water so diverted by the said weir across the farm 'Bushman's Kraal' southwards as per sketch attached. . . .'

At the hearing of this application - to the prayers of which I shall have to refer later - it was agreed that the works referred to in the...