Rand Water Board v Rotek Industries (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Vivier ADP, Olivier JA, Cameron JA, Navsa JA and Conradie JA
• Judgment Date: 26 March 2003
• Citation: 2003 (4) SA 58 (SCA)
• Docket Number: 199/2002
• Hearing Date: 13 March 2003
• Counsel: S J du Plessis SC (with him I M Lindeque) for the appellant. L I Vorster SC for the respondent.
• Court: Supreme Court of Appeal

Navsa JA: G

[1] On 13 March 2003 this appeal was heard and dismissed with costs by this Court in terms of s 21A(1) of the Supreme Court Act 59 of 1959 (the SC Act). Upon issuing the order it was indicated that reasons would follow. These are the reasons.

[2] The background facts are the following. The respondent company instituted action in the Witwatersrand Local Division of the H High Court against the appellant (the board), a statutory public water authority which at all material times exercised its authority in terms of the now repealed Rand Water Board Statutes (Private) Act 17 of 1950 (the Act), seeking an order directing the board to remove all pipelines belonging to it from the respondent's land situated in Rosherville, Gauteng. I

[3] Sooka AJ was called upon to adjudicate the matter in the form of a stated case and was required to answer two questions. The first was whether s 24(j) of the Act, which on the face of it gave the board expansive powers in respect of laying water reticulation pipes on private J

Navsa JA

land, could be exercised on its own or whether it had to be read in conjunction with the powers to expropriate A a servitude for pipeline purposes in terms of s 24(h). Put differently: could the board lay pipelines on private land without first acquiring a servitude?

[4] The second question was:

'Does s 24(j) under the circumstances of the present case (ie the powers were duly exercised, the pipes were B laid and were, and are, used for an authorised purpose) confer upon the board a power, as defined in the subsection, against all subsequent owners including the plaintiff, without any necessity for transfer or registration?'

[5] I interpose to state that of the extensive network of five pipelines installed over many thousand hectares of the C respondent's land, four were installed before the respondent acquired ownership.

[6] The Court below heard argument on 4 September 2000 and delivered judgment on 15 June 2001. The learned Judge answered the first question in favour of the board but held that the powers conferred in terms of s 24(j) of the Act were not D enforceable against successors-in-title and issued an order that the board take such steps as are necessary in terms of s 81 of the Water Services Act 108 of 1997 (the WSA) within a period of one year to acquire by expropriation such land or rights therein as may be reasonably necessary to maintain the relevant pipes on the E respondent's property. The board was ordered to pay the respondent's costs. (The WSA repealed the Act but in s 84 preserved the former statutory powers of water authorities like the board. The WSA and the National Water Act 36 of 1998 now regulate the provision of water services in the Republic.) F

[7] On 21 March 2001, before judgment was delivered in the Court below, the board served a notice of expropriation on the respondent in terms of the provisions of the WSA. On 8 November 2001, after judgment, the parties reached an agreement recorded in a notarial deed of servitude in terms of which the board, against payment of the agreed sum of R942 430, acquired 'the rights in perpetuity to G convey and transmit water over the property by means of pipelines already laid and which may hereafter be laid'. The question of costs of the litigation in the Court below was not settled. The rights of the board as recorded in the deed are extensive. H

[8] The board previously in 1994 adopted a policy that over and above exercising its powers in terms of s 24(j) of the Act it would prospectively endeavour to register servitudes over private land entitling it to install and maintain pipelines. I

[9] Notwithstanding the agreement reached between the parties and in the face of its policy of registering servitudes the board persisted in appealing against the judgment by Sooka AJ and agreed with the respondent, in terms of Rule 8(8) of the Rules of this Court, to...