lawblogsa.files.wordpress.com · Web viewMorris became the owner of Sherwood in 1943 and a few years later he enlarged the dam to a capacity of 2,000,000 gallons. This dam was filled

GRANT AND ANOTHER v STONESTREET AND OTHERS[1968] 4 All SA 133 (A)

Division: Appellate DivisionJudgment Date: 2 August 1968Case No: not recordedBefore: Ogilvie-Thompson JA, Botha JA, Wessels JA, Potgieter JA and Jansen AJAParallel Citation: 1968 (4) SA 1 (A)

• Keywords • Cases referred to • Judgment •

Keywords

Evidence - Document - Ancient document - Evidential value

Servitude - Unregistered - Knowledge - Purchaser with knowledge - Intermediate owner not having knowledge - Nature - Personal right lost on acquisition of servient tenement by purchaser without knowledge of unregistered servitude - Proof - Knowledge - Wilful refusal to notice obvious signs of servitude

Water - Servitude - Unregistered

Water - Surplus water - "Existing rights" - Nature of existing rights

Cases referred to:

Cliffside Flats (Pty) Ltd v Bantry Rocks (Pty) Ltd 1944 AD 106 - Considered

De Jager v Sisana 1930 AD 71 - Compared

De Villiers and Another v Barnard and Others 1958 (3) SA 167 (AD) - Applied

Du Plessis Estates Ltd v SA Railways and Harbours 1933 EDL 140 - Considered

Erasmus v Du Toit 1910 TPD 1037 - Applied

Fourie NO v Oberholzer and Others 1914 TPD 227 - Discussed

Frye’s (Pty) Ltd v Ries 1957 (3) SA 575 (AD) - Referred to

Jansen v Fincham (1892) 9 SC 289 - Referred to

Letsitele Stores (Pty) Limited v Roets and Others 1958 (2) SA 224 (T) - Applied

Malan v Nabygelegen Estates 1946 AD 562 - Applied

Manganese Corporation Ltd v South African Manganese Ltd 1964 (2) SA 185 (W) - Applied

Nott v Liquidators, Breyten Estate Ltd 1916 TPD 375 - Applied

R v Myers 1948 (1) SA 375 (AD) - Applied

Richards v The Nash and Another (1880) 1 SC 312 - Referred to

Ridler v Gartner 1920 TPD 249 - Referred to

Smith and Others v Strydom and Others 1953 (2) SA 799 (T) - Referred to

Snyman v Mugglestone 1935 CPD 565 - Applied

Union Government (Minister of Railways and Harbours) v Marais and Others 1920 AD 240 - Referred to

Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1918 AD 1 - Applied

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Judgment

OGILVIE THOMPSON, J.A.: The two appellants were unsuccessful respondents in an application brought against them (together with two further respondents who neither appeared nor participated in the proceedings) in the Cape Water Court (Ward No. 1) by the present respondents. First appellant is the major shareholder in, and managing director of, second appellant which has, at all times material to this suit, acted through first appellant. The parties are all riparian owners on the Helderberg stream which is a public stream having normal flow and surplus water. Second appellant is the registered owner of the farm Nooitgedacht at the head of this stream, and first appellant is the registered owner of the farm Navarre immediately below Nooitgedacht. The present respondents, who are all lower owners, contend that appellants are bound by an unregistered servitude, having its origin in an agreement of 1865 (annexure C to the application), relating to the use of the waters of the Helderberg stream. After a protracted hearing, the Court below (VAN ZIJL, J., sitting with Mr. G. Kitto, engineer assessor, and Mr. N. C. Krone, lay assessor) upheld the present respondents’ contention and made an order—together with a detailed order for costs-in the following terms, viz:

“The Court declares:1.

That the water turn appropriated to the original farm Nooitgedacht by the 1865 agreement, annexure ‘C’ to the application, namely a turn of the half stream from Wednesday sunset to Saturday sunset, is binding upon first and second respondents and the properties owned by them as set out in annexure ‘A’ to the application.

2.That the water turn appropriated in terms of (1) above relates to half of the full stream of the Helderberg stream throughout the whole year, and that the other half must flow down for the benefit of lower owners throughout the year.

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3.That first and second respondents are obliged to let the full stream flow down from their properties at all times other than during the turn referred to in (1) above.

4.That applicants are entitled at their own expense to register the above order against the title deeds of the properties of the applicants and the respondents.”

The appellants have now appealed. For greater clarity, I shall here after refer to first appellant as Grant and to the present respondents either by name or, collectively, as “applicants”.

By way of introduction, I cannot improve upon the following lucid statement of now uncontroverted facts appearing in the judgment of VAN ZIJL, J., viz:

“On the slopes of Die Helderberg in the district of Somerset West lies a valley in which arises the Helderberg stream, which is a feeder stream of the Moddergat stream, which in turn is a feeder stream of the Eerste River. All three of these streams are public streams having both a normal flow and surplus water. The present case concerns only the Helderberg stream, which arises on the farm Nooitgedacht and then flows over the farms Klipheuvel and Zandberg. These farms are the farms originally granted along the Helderberg stream and are as such each riparian to the stream. The farm Rustenburg is also an original grant, lying along the Moddergat stream just below the point where the Moddergat stream is joined by the Helderberg stream. Rustenburg is in consequence riparian to both the Moddergat and the Helderberg streams.In the course of the years these farms have been divided up and some of them given new names. The following table shows the manner in which these farms have been divided and who were the owners thereof in 1957, 1958 and in 1965 when the present action was instituted. In the table the farms are listed seriatim, commencing with the farm at the head of the Helderberg stream and the names of the applicants (five) and of the respondents (four) and the names of their farms have been italicised:The farm Nooitgedacht, owned by the second respondent, lies at the head and on both sides of the valley in which the Helderberg stream arises. Navarre, owned by the first respondent, Grant, also lies across the valley. At the top of the valley a furrow has been taken out on the left bank and it runs down past the homesteads on both Nooitgedacht and Navarre and at the time when Grant—first respondent—became the owner of Navarre, rejoined the stream just below the homestead. The ground on the left bank slopes more gently towards the stream than does the ground on the right bank. On the right bank the ground at places

drops almost precipitously into the stream and on both farms there is generally only a slender strip of irrigable land on the right bank. On Nooitgedacht approximately half and on Navarre most of the arable land on the left bank lies below the furrow. There is direct evidence that this furrow was in existence before 1910. The water is diverted from the stream into the furrow by means of a stone and this place and stone are known as the ‘Verdelingsklip’.After leaving Navarre the stream passes over San Gabriel, owned by Stonestreet, the first applicant, and flows past the homestead. Just below the homestead the whole stream is diverted into a furrow which is taken out on the right bank.The furrow runs across approximately half of San Gabriel and then past the homestead on Avontuur, owned by Crowther, second applicant, and down to this farm’s boundary on the Stellenbosch-Somerset West road. Here it debouches into a culvert in the storm water sloot running down the left hand side of the road when looking in the direction of Somerset West. In the culvert is a weir which directs the water through a pipe running under the road into a irrigation furrow on the other side. When the pipe that passes beneath the road cannot take all the water in the culvert, the water spills over the weir and runs for a few paces in the storm water sloot on the left hand side of the road and then passes through two very large pipes beneath the road into the storm water sloot on the right hand side of the road. This sloot runs a couple of hundred yards down the road and empties itself into the bed of the Helderberg stream. Until some time prior to 1936, in all probability until early in the twenties, the furrow, after passing beneath the road, cut across Scholtzenhof, owned by Liebetrau, third applicant, passing some twenty yards in front of the homestead before debouching into the stream.The portion of the stream lying between the homestead on San Gabriel and the Stellenbosch-Somerset West Road has been filled in and cultivated over, so that there is to-day no indication of the original water course. Paul Roux, who as a child came to live with his father on Scholtzenhof in 1919, stated that this

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Original Farms as at Owners as at   Farms as

at Owners as at

Grants 1957-1958 1957 Owners as at 1958 1965 1965

  Nooitgedacht A. de R. du Bois No change No change

Nooitgedacht Farming Co. (Pty.) Ltd. second respondent, purchased 31 October 1961

Nooitgedacht

Navarre (also known as Marshden and Marchden)

Dwyer

C. M. M. Pettigrew, purchased April 1258 P. H. Grant, first respondent purchased 26 August 1958

No change No change

  San Gabriel Col. G. Fielden No change No change

R. F. Stonestreet, first applicant pur chased May 1963

Klipheuvel

Avontuur (consists of portions of Klipheuvel and Zandberg)

P. de Waal

R. O. Crowther, second applicant purchased 30 June 1958

No change No change

  Scholtzenhof P. J. Roux No change No change

P. H. Liebertrau, third applicant purchased 10 March 1964

Zandberg Evergreen (consists of por Tions of Zandberg and

J. W. L. Hofmeyr

No change No change D. G. Hofmeyr (born Schoemari) widow, and

“Odendal” which is not riparian to the Helderberg Stream)

Stellenbosch Board of Executors, fourth applicant J. W. L. Hofmeyr died in 1964

        Sherwood

J. W. L. Hofmeyr, fifth respondent, early 1960. D. R. Morris sold to his brother “Fluflfie” Morris, who sold to Hofmeyr 1962

  Sherwood R. R. Morris No change Rustenburg

D. A. Sedgwick, third respondent, purchased from “Fluffie” Morris 1962

Rustenburg Brooklands L. S. Dalton No change No change

L. S. Dalton and J. Z. Moolman, fourth respondents, Dalton had sold to Moolman but transfer had not yet been given

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portion of the course of the stream had, when he first came to Scholtzenhof, already been cultivated over. There were old vines, he says, growing over that portion of the land through which the watercourse must have run. Roux stated in evidence that he had ascertained that these vines had been planted about 1880 or 1888. The furrow from the homestead on San Gabriel down to the road has the appearance of being an old and established water course. It is flanked for a considerable distance on either side by large oak trees and along portion of its banks is thick and established undergrowth. Some of the stones and boulders along the furrow are heavily covered with moss and others appear to be worn smooth by the stream. From the size of the oak trees, the density of the undergrowth, and from the mossed and polished surfaces of the stones and boulders in and along its course, the furrow has the appearance of having been constructed many years ago; probably well before the turn of the century.After passing beneath the road the furrow runs down to the ‘werf on Scholtzenhof and from there it runs westward to Evergreen, which is owned by estate Hofmeyr of which Mrs. Hofmeyr and the Stellenbosch Board of Executors are the executors and administrators. They are the fourth applicants. From Evergreen the furrow runs down the road to Sherwood and from there to Rustenburg. Sherwood was, when Grant bought Navarre, owned by Morris who was still the owner when second respondent purchased Nooitgedacht. At present the upper portion of Sherwood is owned by J. W. L. Hofmeyr, the fifth applicant. He also owns the farm Kuikenvlei which abuts on the portion of Sherwood purchased by him. Kuikenvlei is not riparian to the Helderberg stream. The lower portion of Sherwood is at present owned by the third respondent, Sedgwick. Rustenburg was, at the time the first and second respondent purchased their respective farms, owned by Dalton, one of the two fourth respondents. The other fourth respondent is Moolman.On 26th August, 1958 Grant—first respondent—purchased Navarre from Pettigrew. At that point of time the position in regard to the farms, the stream and the furrows, was as is set out above. At that time there were small dams filled from the stream on the ‘werf’ or in close proximity to the ‘werf’ of each of the following farms: Nooitgedacht, Navarre, San Gabriel, Avontuur and Scholtzenhof. These dams were used for watering the animals and for irrigation. Apart from these dams there was a small dam on Nooitgedacht situated slightly below the ‘verdelingsklip’. This dam was used for irrigation purposes. There was a large storage dam on Evergreen. This dam was built in 1953 and had a storage capacity of three-quarters of a million gallons. In 1954 it was enlarged and again in 1955 when its capacity was increased to 5,000,000 gallons. In 1958 it was again enlarged to hold 8,000,000 gallons which is also its capacity to-day. This dam, which is used to store water for irrigation purposes, is filled from the furrow that is taken out of the Helderberg stream on San Gabriel. The dam was built and enlarged by the late husband of the fourth applicant, Mrs. Hofmeyr. In 1935 a dam was built on Sherwood by Bredell who was then the owner. D. R. Morris became the owner of Sherwood in 1943 and a few years later he enlarged the dam to a capacity of 2,000,000 gallons. This dam was filled from the same furrow that fills the dam on Evergreen and is used to store water for irrigation.

At the time when Grant bought Navarre the owners of the riparian properties were enjoying the following water turns from the Helderberg stream:

Owner and Farm Full or Halfand name original Time Stream

grant  R. R. Morris 50 Hours during the period Saturday sunset Full streamSherwood to Tuesday sunrise  Rustenburg  L. S. Dalton 10 hours during the period Saturday sunset Full streamRustenburg to Tuesday sunrise  Rustenburg  Hofmeyr Tuesday sunset to Wednesday sunrise from 1 Full streamEvergreen May to 31 December  Zandberg  

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Owner and farm   Full or Halfand name original Time Stream

grant    P. J. Roux Tuesday sunrise to sunset and Wednesday Full streamScholtzenhof sunrise to sunset  Zandberg  R. O. Crowther Tuesday sunset to Wednesday sunrise from 1 Full streamAvontuur January to 30 April and Wednesday sunset  Zandberg and to Friday sunrise Half streamKlipheuvel  Col. G. Fielding Friday sunrise to Saturday sunset Half streamSan Gabriél  Klipheuvel  H. Grant Wednesday sunset to Friday midday and Half streamNavarre Friday sunset to Saturday sunrise  Nooitgedacht  de R. du Bois Friday midday to sunset and Saturday sunrise Half streamNooitgedacht to sunset  Nooitgedacht  

As can be seen from the above tabulation, the water was apportioned in weekly turns and the entire week was disposed of, the owner of each farm riparian to the stream receiving a turn during the week. In this connection it should be noted (a) that the turn Tuesday sunset to Wednesday sunrise was shared between the owners of Avontuur and Evergreen, the former receiving the turn during the first four months of the year and the latter receiving the turn during the last eight months of the year, and (b) that the owners of the farms Nooitgedacht, Navarre, San Gabriel and Avontuur (the latter except for the turn shared during the year with Evergreen) receive during their turns only half the stream each; in other words the owners of Nooitgedacht and Navarre on the one hand and San Gabriel and Avontuur on the other hand have turns on the same days, viz., Wednesday sunset to Saturday sunset. The other farms each receive the full stream on their turns. The farms entitled to the half stream are all situated above the Stellenbosch/Somerset West Road. . . .In 1958 the turns were used in spring, summer and autumn for direct irrigation. The flow of water was, however, very weak in the late summer and the autumn and during this period the water, at times, had difficulty in reaching the farms that had been cut from the original Rustenburg grant. Throughout the year the water from the stream was used for the replenishing of the ‘werf dams. The winter water was used during dry spells in the winter for the watering of vegetables and regularly for the cultivation of strawberries—these latter require more water than most of the other crops and require it throughout their cultivation. For the rest the winter water had occasional uses such as the wetting of the soil preparatory to cultivation; the watering of sweet-potato fields to facilitate the lifting of the crop; the flooding of the beds in the vine-nurseries to lift the young vines without injury and such-like. But the mass of the winter water flowed down

the stream into the Moddergat stream. There were two exceptions to this. In 1953, Hofmeyr of Evergreen commenced storing his winter water and by 1958 had a dam with 8,000,000 gallon capacity. Hofmeyr also used his winter water and at times the winter water of Morris of Sherwood and any other winter water which was let down by higher owners for the raising of winter vegetables. He had a standing contract for the supply of vegetables to De Beer’s Dynamite factory at Somerset West. Morris of Sherwood used to use his turn at the end of the winter to fill his 2,000,000 gallon dam for the purpose of irrigating his vegetable crops.After Grant purchased Navarre, certain important changes took place along the Helderberg stream. Since 1953 wine-farmers in Somerset West have started to irrigate their vineyards—mainly by sprinklers. Except for Hofmeyr of Evergreen none of the riparian owners along the Helderberg stream practised this form of irrigation. In fact, the water in the Helderberg stream is during spring, summer and autumn generally so weak that it cannot be used effectively for this form of irrigation. Overhead irrigation is only possible if the winter water is stored and

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used for this purpose. There is, however, not enough winter water for riparian owners to store sufficient water to meet in full their irrigation requirements.”

Grant, who had previously been fruit farming at Elgin, purchased Navarre with the intention of developing it as a fruit farm. In order to store water for the irrigation of his expanding orchards, Grant in 1959 constructed a dam on Navarre which was filled from the Helderberg stream for the first time during the winter of 1960. During 1962 Grant built a second dam, this time across the stream itself, at the lower end of Navarre. From about 1956 onwards, several of the lower owners—all as detailed in the judgment of the Court a quo—began to build conservation dams designed to store water for irrigation in accordance with modern practices. In consequence, the winter waters of the Helderberg stream, which in the more leisurely times of earlier decades had run unheeded towards the sea, became increasingly desired by the lower riparian owners. Their progressive dissatisfaction at Grant’s impounding what they conceived to be an excessive share of the water culminated in the present suit.

That a long-established and regularly observed system of turns in relation to the waters of the Helderberg stream was proved in the Court below was, in effect, conceded in the argument on behalf of the appellants before this Court. Nor was it very strenuously contested that the evidence established a reciprocal servitude in regard to the turns. It accordingly suffices to say that, in my judgment, such a servitude was duly proved. The ambit of the servitude as found by the Court below was, however, strongly challenged on behalf of the appellants on grounds both factual and legal. I therefore proceed at once to an examination of this challenge.

It is part of the applicants’ case that the servitude upon which they rely had its origin in the 1865 agreement and, as appears from para. 1 of the above cited order of the Court a quo, that contention was upheld by the trial Court. As already indicated, the 1865 agreement was not registered against the title deeds of the riparian properties. Nor, indeed, were applicants able to produce any original, or duplicate original, document embodying the said agreement. All that applicants placed before the Court was a typed document purporting to be a copy of an agreement concluded on 20th December, 1865. C. P. Roux, the father of the witness P. J. Roux, owned Scholtzenhof for many years. When he died in November 1937, his son P. J.—referred to in the evidence as Polla—became his executor. Polla Roux found among his father’s papers a letter, dated 7th November, 1921, from P. E. Scholtz, an attorney then practising at Clanwilliam and a brother of J. H. Scholtz from whom Polla Roux’s father purchased Scholtzenhof in 1919, addressed to C. P. Roux, annexing a typewritten document purporting to be a copy of an agreement concluded between the riparian owners on 20th December, 1865. Scholtz’s aforesaid letter described this document as a “copy of a copy of an agreement which I found amongst my father’s papers”. Scholtz’s letter, being more than 20 years old, may be regarded as an ancient document; but it affords no evidence of the truth of its contents (sec. 37 of Act 25 of 1965: Smith and Others v. Strydom and Others, 1953 (2) S.A. 799 (T)). A fortiori the “copy of a copy” affords no evidence of the correctness of its typed contents. Manifestly,

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however, the diversion, described above, last century, of the whole stream just below the original homestead on Klipheuvel, and the clear and long-observed turns of water leading proved by the evidence, must have had their origin in some agreement. It was suggested by counsel for appellants that the observance of the turns by the riparian owners indicated no more than an assumption by

them of some possible origin in agreement without, however, identifying that origin. In my opinion, this suggestion fails to accord sufficient weight to the precise definition of the turns themselves, to the possession by most of the riparian owners since 1921 of a copy of the 1865 agreement, and to the evidence concerning the manner in which some of the riparian owners have been shown to have transferred rights in the waters of the stream to other riparian owners. Thus in 1906 J. E. Scholtz, then owner of Zandberg, sold to J. W. L. Hofmeyr of Evergreen his right to water from the stream during the period from Tuesday sunset to Wednesday sunrise. This sale was embodied in a notarial deed (annexure D to the application) which was registered in the Deeds Office as a praedial servitude on 2nd August, 1906. The preamble to this deed recites that:

“Whereas the said Scholtz has the full, free and undisturbed right, in perpetuity, to the use for a term or period from sunrise on Tuesday morning to sunset on Wednesday evening in each and every week, of the full stream of water which flows from the farm Nooitgedacht (now Marshden) over the farm Klipheuvel and from thence onto and over the farm Zandberg, the property of the said Scholtz and hereinbefore described.”

Clause 1 of the deed provides that:“The said Scholtz in consideration of value received by him therefor hereby cedes, grants, transfers and sets over to the said Hofmeyr the full and absolute right, in perpetuity, to use for a term or period weekly from sunset on Tuesday evening to sunrise on Wednesday morning, the full stream of water flowing from the farm Nooitgedacht (now Marshden) over the farm Klipheuvel and from thence over the remaining extent of the farm Zandberg owned by the said Scholtz and above described.”

Clause 2 grants Hofmeyr “the right in perpetuity” to lead the above water across Scholtz’s land.

As was rightly pointed out by VAN ZIJL, J., it is very significant that the rights thus recited to be vested in Scholtz are couched in identical terms with those allocated to “Pieter Eduard Scholtz bezitter van de plaats Zandberg” in the 1865 agreement. Moreover, as was also pointed out by the learned Judge a quo, J. E. Scholtz, the party to the above—mentioned deed of servitude of 1906, acquired transfer of Zandberg in 1881—that is to say, only 16 years after the 1865 agreement—and it was amongst his papers that his son, attorney Scholtz, found a copy of that agreement. The provisions relating to water rights contained in the transfer deeds passed after the partition of the original Nooitgedacht between the Mostert’s and the Eksteens in 1915 likewise correspond with those accorded to the original Nooitgedacht by the 1865 agreement—namely, half the stream during its turn of Wednesday sunset to Saturday sunset. In 1938 J. Z. Hofmeyr, a successor of the J. W. L. Hofmeyr who purchased water rights from Scholtz under the aforementioned agreement of 1906, sold a portion of those rights to J. J. Hofmeyr, the owner of Avontuur, and a servitude (annexure E to the application) embodying this was registered on 15th October, 1938. Apart from, and in addition to, these registered transactions, the evidence all points towards the successive riparian owners having accepted and faithfully

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adhered to an established system of water turns. When due allowance is made for later sub-divisions of the original riparian farms, and regard is had to the mutual adjustments between individual farms as reflected in the evidence, a comparison of the schedule of water turns, set out earlier in this judgment, which prevailed when Grant purchased Navarre in August, 1958 with the provisions of the document of 20th December, 1865 make it plain, in my opinion, that the origin of the servitude in issue was that document. Inasmuch as this is, indeed, applicants’ case, the circumstance that no original of the 1865 document has been produced is not, in my opinion, of vital significance. Nor, indeed, is this contested by the appellants. On the contrary, it is argued on their behalf that the very terms of the 1865 document destroy the applicants’ case. In order fully to appreciate those arguments, it is necessary to set out the document in full.

Water servitude.Aan een iegelijk zij het kennilijk dat de ondergetekenden, Johannes Petrus Albertus Marais, woonachtig te en bezitter van de plaats Klipheuvel, gelegen te Moddergat in het distrikt van Stellenbosch, Pieter Eduard Scholtz, bezitter van de plaats Zandberg gelegen als boven, Hermanus Johannes Malan, bezitter van de plaats Nooitgedagt gelegen als boven, en Hendrik Johannes Morkel, bezitter van de plaats Rustenburg gelegen als boven, op heden den 20 December 1865 en in de tegenwoordigheid der ondergetekende getuigen alle contracten betrekking hebbende op de verdeling van water, hetzij notarieel of onderhande, tusschen hen of de voormalige bezitters van boven plaatzen aangegaan, voor den datum dezed, hebben herroepen en vernietigd en hiermede zulke hebben herroepen en vernietigd.

Dat in plaats van alle vorige contracten of overeenkomsten de volgende contract tusschen gezegde Johannes Petrus Albertus Marais, Pieter Eduard Scholtz, Hermanus Johannes Malan, en Hendrik Johannes Morkel, op heden is aangegaan en van heden in volle kracht en werking zal moeten komen.Het water springende uit de Helderberg, en waarop gezegde bezitters het regt hebben, alsmede sodanige water als ergens elders mogt ontspringen, op de eigendommen van gezegde Johannes Petrus Albertus Marais, Pieter Eduard Scholtz, Hermanus Johannes Malan, en Hendrik Johannes Morkel, uitgezonderd het water komende uit ‘Kortrugskloof’ op het eigendom van gezegde Hermanus Johannes Malan, en het water komende uit een fontein op. het eigendom van gezegde Johannes Petrus Albertus Marais gelegen tusschen 300 en 400 treden ten Westen van het woonhuis van gezegde Johannes Petrus Albertus Marais, zal moeten worden verdeeld als volgt; van Dinsdags zonop tot Woensdags zononder, zal gezegde Pieter Eduard Scholtz het reg en de dispositie over gezegde water hebben, van welk oogenblik, namentlijk Woensdags zononder, het water om de helft verdeeld zal moeten worden tusschen Hermanus Johannes Malan en Johannes Petrus Albertus Marais zullende zij het regt en de dispositie daarover hebben tot Zaterdags zononder, zullende de bezitter van die plaats Nooitgedagt moeten zorgen, dat de helft van de water op de scheiding van gezegde Hermanus Johannes Malan en Johannes Petrus Albertus Marais, zal worden afgekeurd, en hetzelve te laaten lopen naar de plaats van gezegde Johannes Petrus Albertus Marais, zullende gezegde Hendrik Johannes Morkel, het volle regt en dispositie van het water hebben van Zaterdags zononder tot Dinsdags zonop.Dit contract zal van kracht moeten zijn op die namalige bezitters van meergemelde plaatzen, en te zijn en eeuwigdurend serwituut.Aldus gedaan te Stellenbosch, op den datum voormeld, en met onze naamtekening bekrachtig, in de tegenwoordigheid der ondergetekende twee getuigen, Pieter Gerhard Myburgh, P. G. Zoon, en Johan Godlieb Mader.Als getuigen:

P. G. Myburg P. G. Zn.J. Mader.

J.P. A. MaraisPieter Eduard ScholtzH. J. MalanH. J. Morkel.”

First it is contended by appellants that no valid agreement could have been concluded on 20th December, 1865 because searches in the Deeds

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Office have established that, although the original farms Nooitgedacht, Zandberg and Klipheuvel were, as stated in the agreement, on 20th December, 1865, owned respectively by Malan, Scholtz and Marais, as at that date the farm Rustenburg had already been sub-divided and was registered, not in the name of Hendrik Johannes Morkel referred to in the 1865 agreement, but, respectively, in the names of Jacobus Christiaan Faure and Johan Bredel. The evidence fails to reveal whether or not Hendrik Johannes Morkel did in fact later become registered owner of Rustenburg; but, however that may be, the contention thus advanced on behalf of the appellants appears to me to be without real substance. For the evidence establishes that at all times material to this suit the successive owners of Rustenburg have, in common with the other riparian owners, duly observed the water turns mentioned in the document. Secondly, with reliance upon the evidence of Dr. Schoonees, an expert in languages, including Nederlands, it is argued that, on a purely linguistic approach, the provisions of the 1865 document apply, not to the stream itself, but solely to the permanent summer supply from springs. It is submitted that there is in the document a notable absence of any reference to the Helderberg “stroom” or “rivier”; that the expression “het water springende uit de Helderberg” contrasts strikingly with “water als ergens elders mogt ontspringen”, and that the former expression cannot connote the origin of a river. I am unable to agree with these submissions. Having regard to his answers under cross-examination, I do not think that Dr. Schoonees’s evidence materially assists the appellants. It is, in my opinion, grossly improbable that the signatories to the 1865 agreement would have had the limited intention and objective thus sought to be attributed to them by counsel for appellants. Nor, in my view, does the language of the document compel any such construction. The first paragraph of the document cancels all prior “contracten betrekking hebbende op de verdeeling van water” and goes on, in the third paragraph, to provide that thenceforth the water (“het water”) is to be divided (“zal moeten worden verdeeld”) into the turns therein stated. The water (“het water”) thus to be divided is (a) “het water springende uit de Helderberg en waarop gezegde bezitters het regt hebben”, and (b) “alsmede zodanig water als ergens elders mogt ontspringen op” the various named farms, with,

however, the exclusion of (c) “het water komende uit Kortrugskloof” and (d) “het water komende uit een fontein” . . . In this context, I do not consider that any decisive significance attaches to the fact that “springende uit” occurs in (a), whereas (b) above uses “ontspringen”. In my judgment, the document, read as a whole, makes it clear that the parties were contracting in relation to the waters of the Helderberg stream.

Thirdly, in relation to this agreement of 1865, it is submitted on behalf of appellants that in any event it, on a proper construction thereof, relates only to the water of the stream during summer. In addition to relying upon the general principle that servitudes should be restrictively construed (Union Government v. Marais and Others, 1920 A.D. 240 at p. 271), counsel for appellants based this submission largely upon the statement in Halsbury, cited in Du Plessis Estates Ltd. v. S.A.R., 1933 E.D.L. 140 at p. 152, and in Cliffside Flats (Pty.) Ltd v. Bantry Rocks (Pty.) Ltd., 1944 A.D. 106 at p. 117, reading:

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“The nature and extent of an easement created by express grant primarily depend upon the wording of the instrument. In construing a grant of an easement regard must be had to the circumstances existing at the time of its execution; for the extent of the easement is ascertainable by the circumstances existing at the time of the grant and known to the parties, and is limited to those circumstances.”

The amount of irrigation done in 1865, said counsel for appellants, was negligible, if, indeed, any was done at all; and certainly none was done during the rainy months of the Cape winter. The riparian owners were primarily concerned with water for domestic purposes and for the watering of their stock. No storage of water for irrigation was practised, and the winter flow of the stream was regarded more as a potential danger than as an asset. Those, said counsel, were the circumstances existing at the time the 1865 agreement was executed; and, in the light of those circumstances, this Court should disabuse its mind of the present-day conditions prevailing along the Helderberg stream and not attribute to the signatories of the 1865 agreement any intention to contract in relation to the winter waters of the stream. Rightly construed against the background of the circumstances prevailing at the time of its execution, the document, contended counsel for appellant, reveals no more than an intention to provide water for the uses then in vogue and should, therefore, be limited in its application to summer water.

The legal principles thus advanced by counsel are unexceptionable; but I am unable to accede to the remainder of his above submissions. Quite apart from the difficulty of determining when “summer” begins or ends, and the circumstance that the domestic and animal requirements of the riparian owners also obtained during winter, it appears to me to be inherently improbable that the riparian owners should, in their contract dividing the water, have intended to limit themselves to the “summer”. No cogent reason suggests itself why they should have intended to do so. Nor, in my view, does the wording of the document support the submissions thus advanced by counsel for appellants. The document makes no reference whatever to seasons of the year. It is “het water” (i.e. all water other than the two stated exceptions relating to Kortrugskloof and the Fontein) which is to be divided (“zal moeten worden verdeelt”) into the turns specified in the document. Those turns take up the 168 hours of a full week, and they contain no seasonal limitation. That is to say, they are, on the wording of the document, operative throughout the year—which is only what one would expect of a system of turns which is not expressly confined to stated months of the year. The contract in terms provides that it is to be binding on successors in title and is to constitute a perpetual servitude (“ewigdurende servituut”). In my judgment, the document of 1865, on a proper construction of its terms and according due regard to the circumstances existing at the time of its execution, effected a division of all the water of the Helderberg stream into turns throughout the year.

I accordingly conclude that the trial Court correctly held that applicants duly proved the existence of a reciprocal praedial servitude, having its origin in the 1865 agreement, and in the terms claimed by applicants.

At this juncture it is not inapposite to mention that, when applying for a subsidy in respect of portion of his irrigation scheme and in reply to a request for information from the Irrigation Department regarding

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his water rights, Grant on 28th March, 1960—that is to say, after ‘his purchase of Navarre but before he bought Nooitgedacht—sent to the Circle Engineer a copy of the 1865 agreement. The material portion of Grant’s covering letter to the Circle Engineer reads:

“With reference to my application for a subsidy on the above-named scheme I herewith enclose a copy of the water servitude relating to the stream which flows through my farm. I regret that apart from this document there is no other information I can submit, and I trust this will be sufficient.”

Grant’s case, as asserted in his plea and throughout his evidence, is that the turns apply only during summer. He explains the sending of the 1865 document to the Circle Engineer on the basis that he regarded that document as confirming what he believed his water rights to be—viz: that he had free use of the water in winter. Under cross-examination, he finally conceded that both Navarre and Nooitgedacht derived their water rights from the 1865 document. While that concession must, of course, be regarded as qualified by Grant’s insistence that the 1865 document relates only to summer water, such a qualification is, on the views I have expressed above, of no legal validity. In this connection it is noteworthy that Grant’s aforementioned letter of 28th March, 1960 contains no express mention of rights to winter water. Nor is there any such mention in the correspondence between Leslie—the engineer employed by Grant in succession to Carrington—and the Irrigation Department in regard to Grant’s water rights. Faced with these facts in cross-examination, Grant stated that he had previously satisfied the Department about his water rights independently of the 1865 document. His further answers under cross-examination in relation to this point are very unconvincing. The relevant passage reads:

“Do I understand your evidence to be that there was other information given to Water Affairs which I don’t know about. Is that what you are saying?—I could only have given the information I knew and that was that as far as I knew I’d been told that I had the rights on the winter water and that the summer water was to be divided in accordance with a system of turns.By the Court: When did you give this information?—Well in connection with my first application. I can only say that I must have done this.How did it come about that you gave this information?—I might have done it verbally M’Lord, I don’t know.Could you have given it verbally?—(No reply.)You see, from the correspondence it would appear that your engineer was negotiating? —Well, he was M’Lord.Then what occasion would there be for you to see Water Affairs? Did you see them with him or separately, how did you come to contact Water Affairs and give this information verbally?—I am not saying I did M’Lord, I am saying I could have done. But I can’t recall how it happened, but I know that I have, personally, been in contact with Water Affairs. I know that I have. I can’t recall exactly in which circumstances. I know that my engineer was dealing with the Water Affairs Department, and I can only assume . . .Before sending this letter of 28th March, 1960, did you ever deal direct with Water Affairs?—It is terribly difficult to say M’Lord, I think I did.”

I now proceed to consider the important question of the extent to which Grant was proved to have had knowledge of the aforementioned servitude at the time that he acquired Navarre. In the circumstances of this case, there is no material difference between Grant’s knowledge at the date of purchase and the date when he took transfer : I accordingly do not pause to consider which of those dates should, in law, be regarded as decisive. (Cf. Ridler v. Gartner, 1920 T.P.D. 249 at p. 259; Frye’s (Pty.) Ltd. v. Ries, 1957 (3) S.A. 575 (A.D.) at p. 582D). As was clearly appreciated by the learned Judge a quo, the onus lay throughout upon

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applicants to establish that Grant had that degree of knowledge of the servitude which would render it legally ‘binding upon him notwithstanding the absence of registration.

The extent of Grant’s knowledge at the relevant time was, of course, essentially a question of fact, and thus one primarily for the decision of the trial Court. In relation to this question, relatively little positive direct testimony was adduced by applicants, most of the evidence advanced by them in this connection being of an inferential character and none of it, considered in isolation, decisive. In consequence, Grant’s credibility becomes a vital factor in the decision of the case. In regard to that,

the trial Court found Grant to be “an untruthful and unreliable witness”, adding, with a wealth of example and epithet, that he was a dishonest witness whose evidence revealed “many instances of his lack of regard for the rights of others”. Save for Schoonees, already mentioned, the only other witness called for the defence was Pettigrew. He too failed to further the defence case; for the learned Judge said of him that he did not give “the impression of a candid witness” and appeared to be “trying to reconstruct . . . in a manner that would favour Grant’s cause”. In the light of these findings on credibility, the task of counsel for appellants in relation to the factual issue of Grant’s knowledge was not without its difficulties. For it is well established that, applying well-known principles, this Court will not readily disturb a trial Court’s conclusion in relation to a factual issue which largely depends upon supportable findings regarding the credibility of vital witnesses. This notwithstanding however, an appeal is, of course, a rehearing, and it is important to bear in mind throughout the enquiry that the servitude claimed by the applicants is unregistered and that the onus lies upon the applicants to establish their case.

Counsel for appellants urged upon us that the trial Court’s conclusion largely derived from misdirections regarding documents and from what counsel claimed to be the unwarranted rejection of the testimony of Grant and Pettigrew. Both these men, said counsel, had been demonstrated to be cautious buyers; both intended to go in for fruit farming on an extensive scale; and both were well aware that a substantial supply of water was an indispensable requirement for the projects they had in mind. Those projects entailed the construction of dams and the establishing of extensive orchards, for the irrigation of which latter water would have to be conserved. All this would, quite apart from the purchase price of the farm itself, require a very considerable capital outlay. It is inconceivable—so the argument continued—that either Pettigrew or Grant would have purchased Navarre without first satisfying himself that water, the indispensable requirement, was available in sufficient quantity. Grant, said counsel for appellants, acted openly throughout—even advising Crowther and Stonestreet to emulate his practice of taking water from the stream—and thus demonstrated his bona fides and the absence of any knowledge on his part that he was infringing any legal right vested in the lower owners. The various features thus urged upon us by counsel for appellants are not without some weight and they merit careful consideration.

In para 6 (a) of their application, applicants referred to the 1865 agreement (annexure C) and the water turns therein mentioned, averred

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that that agreement was not registered, and went on to allege that“at all material times hereto all the owners of the properties and sub-divisions thereof knew of and adhered to the said turns and by their conduct accepted them”.

After mentioning, in sub-para. (b), the sub-divisions of the original grants and the servitudes of 1906 and 1938 (annexures D and E), para 6 (c) of the application alleged that, subject to what had been set out in para. 6 (b), the provisions and turns of the 1865 agreement had been consistently observed. Para. 7 of the application continued:

“7.(a)At all times material hereto first and second respondents have had knowledge of the aforesaid 1865 agreement and the further division and appropriation of the water into the said turns and the said adherence thereto by the original owners and their successors in title. More in particular first and second respondents adhered to the said division and appropriation from time of their occupation in 1958 and 1962, respectively, and thereby accepted and ratified the aforesaid appropriation and division into turns and the usage based upon it.

(b)In the premises first and second respondents are legally liable to adhere to the division and appropriation of the water as set out in annexures C, D and E, and are in particular liable, during the said turns and throughout the year, to allow the full stream (or the half stream, as the case may be) to flow down for the benefit of applicants.”

In response to a request in that behalf, particulars of this paragraph were furnished. The material portions of Grant’s plea to para. 7 of the application, as thus particularised, read as follows:

“9.A.

Ad para. 7 (a) of applicants’ application.(a)

At the time of purchasing Marshden in 1958 first respondent had been informed by his predecessor-in-title that by virtue of an old arrangement the Helderberg stream water was apportioned among riparian owners during summer and that as owner of Marshden he would be entitled only to certain turns from the stream during summer, but that he was entitled to take as much water as he wished during winter. First respondent denies having seen any written agreement dealing with water rights at the time of purchasing or taking transfer of Marshden.

(b)Since 1958 first respondent has accepted that the water flowing in the stream in summer should be divided and appropriated among riparian owners.

(c)Save as above first respondent denies each and every allegation in para. 7 (a) of applicants’ application.

B.In regard to the further particulars furnished to para. 7 (a) of applicants’ application, first respondent replies as follows:

Ad para. 4 (a) (i) of the further particulars.(i)

First respondent admits that since about October, 1958, he has allowed the stream to flow down for the benefit of lower owners in summer, during the turns alleged but not in winter. First respondent is willing to continue so to let down water during summer, but not because he in any way admits being bound by the alleged 1865 agreement.Ad para. 4 (a) (vi) of the further particulars.

(iv)Save that first respondent knew that his immediate predecessors-in-title recognised rights of lower riparian owners to turns of summer water as set out in para. 9 A (a) above, the allegations in this paragraph are denied, in particular it is denied that first respondent knew that the owners in 1865 or their successors-in-title adhered to the alleged 1865 agreement and turns or that they had accepted that it appropriated the water into turns.

10.Ad para. 7 (b) of applicants’ application read with the further particulars thereto.(a)

Save as set out in para. 9 above first respondent denies having purchased or acquired his property with knowledge of the existence of the alleged agreement set out in annexure C.”

In response to a request for particulars regarding para. 9 (A) (a) of his plea, Grant replied as follows:“(i)

First respondent was not informed whether the arrangement referred to

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was a verbal or a written one. He was informed that he was entitled to half the stream from Wednesday 6 p.m. to Friday 12 noon and from Friday 6 p.m. to Saturday 6 a.m. in summer and that he would not be restricted in any way to the use of Winter water, all of which he would be entitled to take if he required it.

(ii).....................

(iii)First respondent was not informed over what periods ‘summer’ and ‘winter’ extended but understood that ‘summer’ referred to the period during which irrigation is practised and that ‘winter’ included the remainder of the year.”

In addition, an affirmative answer was given by Grant to a request for further particulars of para. 9 (A) (b) of his plea, which said request read as follows:

“Does first respondent mean to allege that, since the time when he was informed by his predecessor of the turns, first respondent adhered to and accepted those turns during summer?”

As plainly appears from para 9 (A) (a) of the plea—to which I shall later return—Grant’s case is principally based upon the information which he avers he received from his predecessor—in-title. This,

of course, was Pettigrew, who purchased Navarre from Dwyer in April, 1958 and sold it to Grant by deed of sale dated 26th August, 1958. Although Pettigrew testified at the trial after Grant, it is, I think, appropriate first to examine his testimony

[The learned Judge proceeded to examine the evidence and proceeded.]

Having regard to the various features I have mentioned, I am unable to accede to counsel for appellants’ submission that the trial Court erred in not accepting Pettigrew’s evidence. On the contrary, I remain wholly unpersuaded that the trial Court erred in its assessment of the value of his testimony.

I have been at some pains to examine Pettigrew’s evidence in detail; for, while the issue on this part of the case is the knowledge of Grant, and not that of Pettigrew, Grant’s state of mind largely depends upon what Pettigrew told him. Notionally, the possibility that Pettigrew misled—or, consequently, even deceived—Grant no doubt exists; but no such suggestion was advanced either by Grant in evidence or by his counsel in argument. On the contrary, according to the record these two men have at all material times been friends; and, by calling Pettigrew as his main witness, Grant, in effect, tendered Pettigrew’s testimony as being the truth. It suffices to say that Pettigrew’s evidence relating to the advice he allegedly obtained from counsel in regard to the surplus winter water, and as to what he conveyed to Grant in this regard, carries, in my opinion, but little conviction; and, further, that no sufficient grounds have been shown which would warrant this Court in disturbing the trial Court’s finding that Pettigrew was not advised that he could use all the winter surplus water.

[The learned Judge then examined this evidence and continued.]

The aforegoing review of Grant’s evidence leads me to the conclusion that, without necessarily associating myself with all the adverse comments about him made by the learned Judge below, I remain wholly unpersuaded that the trial Court was wrong in regarding Grant as an unreliable witness and in rejecting his testimony. While the onus of proof rests, not upon Grant, but upon the applicants, this conclusion is, in my view, of considerable importance. For the rejection of Grant’s testimony carries with it the rejection of the qualification which lies at

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the heart of the appellants’ case; namely, that the admitted turns were understood by Grant to relate only to the summer.

The vital question remains: was the extent of Grant’s knowledge of the servitude, at the time he acquired Navarre and as established by the evidence, sufficient in law to render him bound by the unregistered servitude claimed by the applicants? Having regard to our system of registration, the purchaser of immovable property who acquires clean title is not lightly to be held bound by an unregistered praedial servitude claimed in relation to that property. If, however, such purchaser has knowledge, at the time he acquires the property, of the existence of the servitude, he will—subject to a possible qualification, discussed below, relating to cases where there has ‘been the intervention of a prior innocent purchaser—be bound by it notwithstanding the absence of registration. The basis of this obligation is that in attempting, under such circumstances, to repudiate the servitude, the purchaser is mala fide, and that the law refuses to countenance any such attempted repudiation because, as it is put in some of the cases, it in reality amounts to a species of fraud (see Richards v. Nash, 1 S.C. 312; Jansen v. Fincham, 9 S.C. 289; Ridler v. Gartner, 1920 T.P.D. 249 and cf. De Jager v. Sisana, 1930 A.D. 71 at p. 84). Mala fides is not readily presumed, and it was emphasised in Jansen v. Fincham and Ridler v. Gartner, supra, that clear proof of knowledge on his part is required before the Court will hold a purchaser bound by an unregistered servitude. As was observed by WESSELS, J., in Ridler v. Gartner, supra at pp. 259-260:

“There must be an element of deceit, an element of chicanery in the transaction, before the Court will set it aside on the ground of knowledge. It must be perfectly clear to the Court that the person who alleges that he bought a clean transfer knew perfectly well and did not expect that he would get a clean transfer except by his fraud. Any other view of the law would be extremely dangerous and would dig away the very foundations upon which our whole system of registration is based.”

Although, unlike the English Law, the doctrine of constructive knowledge has, in our law, little or no application in enquiries of this kind (Erasmus v. Du Toit, 1910 T.P.D. 1037; Snyman v. Mugglestone,

1935 C.P.D. 565), the statement made by BRISTOWE, J., in Erasmus’s case, supra at p. 1049, that, if a person wilfully shuts his eyes and declines to see what is perfectly obvious, he must be held to have had actual notice, appears to me to be sound in principle and to merit the approval of this Court. It is with due regard to the above-mentioned principles that the facts of the present case must ‘be considered.

The Helderberg stream is a relatively short river the waters whereof have for generations been utilised by the riparian owners. To this the furrow on Nooitgedacht and Navarre and the diversion, last century, of the whole stream below the original homestead on Klipheuvel bear clear testimony. No doubt, the amount of water actually used in earlier generations was relatively small; but, by the time Grant appeared upon the scene in 1958, such user had materially increased, and on Evergreen substantial storage of water had already been effected. It is against that background that Grant’s admitted knowledge, before he acquired Navarre, of the existing water-turns must be considered. In this connection, it must again be emphasised that the turns operated along the whole river, with each turn precisely defined in respect of each respective riparian property, throughout the 168 hours of a full

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week. That being the case, it must surely have been obvious to Grant, not only that the turns had their origin in a prior agreement between the riparian owners, but also that they were operative throughout the year. A simple enquiry of almost any one of the riparian owners would have elicited the information that the 1865 agreement was accepted as the origin of the servitude and that the turns were regarded by the riparian owners as operating throughout the year. This latter was contested by counsel for appellants who pointed to Roux’s allegedly having given his “blessing” to the construction of Grant’s dam across the stream, to Crowther’s storing of surplus water, and to the “gentlemen’s agreement” of 1962. These features are, however, in my opinion readily explicable. The construction of a by-pass at the dam was insisted upon. Crowther, who only purchased Avontuur on 30th June, 1958, admittedly at first accepted what Grant told him regarding surplus water. The “gentlemen’s agreement”—to which not every owner was a party—was a trial arrangement for a year in an endeavour to avoid further disputes. Roux left Scholtzenhof soon thereafter. It is no doubt true that, as was argued by counsel for appellants, the lower owners’ interest in winter water and surplus water increased as their farming methods ‘became more modern; but that is not to say that the lower owners ever regarded their turns as being limited only to the summer or to the “normal flow” of the stream. Moreover, independently of the 1865 agreement and of what Grant could have ascertained by enquiry, the list of turns in itself contained eloquent information. As appears from the list of the turns, set out earlier in this judgment, which were operative at the time Grant purchased from Pettigrew, Nooitgedacht and Navarre enjoyed only half of the stream during their respective turns. So also in the case San Gabriel and Avontuur, save that the latter also had the full stream during Tuesday nights for the period 1st January to 30th April. Scholtzenhof and the lower owners enjoyed the full stream during their respective turns, Evergreen’s turn, of full stream during Tuesday night, being, however, confined to the period 1st May to 31st December. Save as regards the above-mentioned half-stream turns, there was no question of a quantitative division of water. Still less did the list of turns contain any suggestion whatever—other than in the one exceptional instance of the afore-mentioned Tuesday night water—of a division of water on a seasonal basis. Grant was not new to farming. Even upon the premise that Pettigrew did tell him that the turns had no application to the winter water, Grant would, having regard to the vagaries of climate, surely at once have appreciated the impracticability of restricting a system of turns to the “summer”. Yet, on his own evidence Grant made no further enquiries whatever regarding the origin or ambit of the turns. As was remarked—albeit in a somewhat different context—by GREENBERG, J.A., in R. v. Myers, 1948 (1) S.A. 375 (A.D.) at p. 383, the absence of reasonable grounds for belief in the truth of what is stated may provide cogent evidence that there was in fact no such belief. When-as necessarily flows from the rejection of the evidence of Grant and Pettigrew—the above-mentioned premise is excluded, Grant’s admitted knowledge of the existence of the turns carries with it the full significance indicated above.

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The cumulative effect of the various considerations I have mentioned is such as, in my judgment, to establish, in accordance with the standard of proof required in civil cases, that Grant, when he acquired Navarre, had a sufficient knowledge of the existing servitude as to render him legally bound

thereby, unless either of the two special defences raised by him and examined below relieves him of that obligation.

It follows from the above that second appellant is likewise—subject, however, to the afore-mentioned special defences—bound by the servitude. For, by the time Nooitgedacht was purchased, Grant—whose knowledge is admittedly attributable to second appellant-had already obtained a copy of the 1865 document. It is also worthy of mention in passing that in para. 8 of the deed of sale, dated 31st October, 1961, of Nooitgedacht from du Bois to one Morkel in his capacity as a trustee for a company in the course of formation (viz: second appellant) it was provided that:

“In so far as the water rights are concerned, the seller undertakes to hand over the documents in his possession relating to such water rights, including a copy of an agreement dated 20/12/1865 and summary of the water rights.”

The circumstance that Grant took legal opinion regarding the 1865 document around this time cannot assist second appellant. For, if that advice was contrary to what this Court now holds to be the true content of the servitude having its origin in that document, such advice is of no avail either to second appellant or to Grant himself.

I accordingly come to the conclusion that—subject to the two aforementioned special defences raised—both appellants are bound by the servitude claimed by the applicants.

The first of the afore-mentioned special defences is that appellants cannot, in any event, be held bound by the servitude in the absence of proof that each and every one of their predecessors-in-title had knowledge of the servitude when they acquired the property—viz. the original Nooitgedacht and, later, its sub-divisions Marshden (now Navarre) and the Nooitgedacht of to-day. The argument is that, prior to registration, the owner ‘of the dominant tenement has only a personal right against the owner of the servient tenement, which said right is lost, with consequential lapse of the servitude, once any purchaser acquires transfer of the servient tenement without being aware of the servitude. This argument has the support of Fourie, N.O. v. Oberholzer and Others, 1914 T.P.D. 227, and, to a considerable degree, of remarks by Professor Scholtens in 1968 S.A.L.J. p. 248, and comment in 1964 Annual Survey, p. 205. In Fourie’s case, supra, GREGOROWSKI, J., inter alia, said that the plaintiff, who was the owner of the dominant tenement of the servitude:

“Would only be entitled to have it registered against the present owners of the remaining extent if they not only knew of the plaintiff’s rights when they acquired the property and obtained transfer, but if everyone of the persons from whom they had acquired it through the original vendor also had full knowledge of the plaintiff’s rights.”

The actual decision in that case related to the striking out of certain allegations in a replication. The judgment was given ex tempore, without citation of any authority, and, as was pointed out in Malan v. Naby gelegen Estates, 1946 A.D. 562 at p. 577 not always in entirely precise language. A contrary view to that of GREGOROWSKI, J.—without mention however, of the decision in Fourie, N.O. v. Oberholzer,

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supra—was taken by WILLIAMSON, J., in Letsitele Stores (Pty.) Ltd. v. Roets and Others, 1958 (2) S.A. 224 (T) at p. 228; and, although based on the wider ground that no one can confer a better title than he himself has, learned articles by Professor N. J. van der Merwe in the Tydskrif (1962, vol. 25, p. 155, and 1964, vol. 27, p. 300) also support the view that the purchaser remains liable. CILLI§, J., in a considered judgment in Manganese Corporation Ltd v. S.A. Manganese Ltd., 1964 (2) S.A. 185 (W), disapproved Fourie v. Oberholzer, supra, and, following the Letsitele’s Stores case, held that a purchaser with knowledge of an unregistered servitude was bound thereby notwithstanding the intervention, between the grantor of the servitude and such purchaser, of a prior owner of the servient tenement who had bought without knowledge of the servitude.

The contention that, on acquisition by the innocent purchaser, the servient property is discharged of its obligation is fortified by the argument that, as is explained by Prof. Scholtens in his above-mentioned remarks, it is inequitable that such an innocent purchaser should, on resale of the property to a purchaser with knowledge of the servitude, suffer financially by being obliged to accept the lower price, consequent upon the continued existence of the servitude, obtainable from such a purchaser. Generally speaking, however, the innocent purchaser who thus sustains loss will have a right of action

for damages against his vendor. If a series of innocent purchasers be postulated, anomalies may no doubt present themselves: but, in my view, such considerations should not, without more, be permitted to enable the subsequent purchaser with knowledge always to avoid all consequences of that knowledge. As shown above, the principle whereby the purchaser is held bound by the servitude is that, in the circumstances of the case, his repudiation thereof is mala fide, notwithstanding the absence of registration. To the cases previously cited in this connection, I might perhaps usefully add the remarks of WESSELS, J., in Nott v. Liquidators of the Breyten Estates Ltd., 1916 T.P.D. 375 at p. 376, viz:

“If at the time when the third party purchases the ground he is aware of the fact that there is a servitude upon the property that he buys, then the Courts have held that it is dolus malus on his part to insist upon having a free transfer simply because that servitude has not been registered in the Deeds Registry.”

The application of this principle, and some of the dicta, in the Manganese case, supra, may, having regard to the facts which there obtained, conceivably be open to some criticism—matters which I, however, leave entirely open—but the principle itself is a salutary one and, in appropriate circumstances, the Court should not, in my opinion, be astute unduly to restrict the ambit of its application. While it is correct to say that a servitude may be acquired by agreement and that, inter partes, such an agreement is binding, it is nevertheless important to appreciate the true nature of the right thus acquired by the grantee. In Willoughby’s Consolidated Co. Ltd. v. Copthall Stores Ltd., 1918 A.D. 1 at p. 16, INNES, C.J., put the matter thus:

“Now a servitude, like any other real right, may be acquired by agreement. Such an agreement, however, though binding on the contracting parties, does not by itself vest the legal title to the servitude in the beneficiary, any more than a contract of sale of land passes the dominium to the buyer. The right of the beneficiary is to claim performance of the contract by delivery of the servitude, which must be effected coram lege loci by an entry made in the register and endorsed upon the title deeds of the servient property.”

Page 152 of [1968] 4 All SA 133 (A) View Parallel Citation

A servitude, once it is registered, is said to have pro tanto “carved out” portion of the dominium of the servient tenement. It is with reference to rights of this nature, which upon registration would so affect the dominium, that the rule holding bound a purchaser with knowledge of the existence of an unregistered servitude has its true application. For, as was pointed out by INNES, J.A., in the earlier Copthall Stores case, 1913 A.D. 267 at p. 280:

“In order that notice of the existence of prior rights should affect a purchaser of land held under unencumbered title, it is necessary that the rights should be real, so that their delivery would take away something from the dominium which he is seeking to acquire.”

Admittedly, the grantee of an unregistered servitude cannot enforce his claim against an innocent purchaser of the servient property; but it does not appear to me necessarily to follow therefrom that the servitude is thereby finally extinguished. For the grantee retains his contractual rights against the grantor; and, although specific performance will ordinarily no longer be ordered against the grantor, that does not, in my view, by itself constitute sufficient reason for completely relieving a subsequent purchaser who has full knowledge of the servitude from the obligation—namely, to submit to the registration of the servitude at the instance of the grantee—which would undoubtedly rest upon him were there no intervening innocent purchaser. Some of the cases admittedly designate the attempt on the part of a purchaser with knowledge to resist registration of the servitude as a “species of fraud”; but it does not appear to me to be an indispensable element of holding a purchaser with knowledge bound that there must always have been, as it were, a conspiracy between such purchaser and his immediate vendor. As I have pointed out above, it is the mala fides of the purchaser with knowledge which fixes him with liability to recognise the servitude by submitting to registration.

The question for decision, on this part of the case, accordingly is whether applicants have established that, having regard to all the facts, Grant’s and second appellant’s resistance of applicants’ claim for registration of the servitude in issue constitutes mala fides within the ambit of the principle under consideration. The onus rests upon the applicants, but I mention in passing that the appellants have placed no evidence before the Court which even faintly suggests that any prior owner of Nooitgedacht or Navarre ever purchased without knowledge of the servitude. Nor have the appellants advanced any evidence which in any way indicates that any such prior owner ever declined to recognise the servitude. Applicants, on the other hand, have, through the evidence of the witness Mostert, shown that, at any rate from the date that Nooitgedacht was sub-divided in 1915 into Marshden (Navarre)

and the present Nooitgedacht, the water turns were observed by both sub-divisions. Dalrymple, who had previously purchased Navarre from Mostert’s father, acknowledged, by letter dated 19th May, 1949, that Navarre was subject to the water turns as reflected in the 1865 agreement. Dwyer, who purchased Navarre from Dalrymple and thereafter sold to Pettigrew, apparently adopted the same attitude. For, as mentioned earlier in this judgment, Pettigrew said, in the course of his evidence at the trial, that

“there was a list in the office . . . giving the turns that the previous owner had

Page 153 of [1968] 4 All SA 133 (A) View Parallel Citation

observed . . . we just went on observing what had been done previously”

As detailed earlier in this judgment, Pettigrew himself knew of, and observed, the turns. As regards Nooitgedacht, du Bois, who owned it from 1946 until he sold to Morkel on behalf of second appellant (then in the process of formation), knew, when he purchased, of the water turns and throughout observed them. The evidence establishes that same observance right along the river at least as far back as the early 1940’s. Although there is no direct evidence relating to the years prior to this last-named period, the general probabilities are overwhelmingly in favour of the turns having been consistently observed by all the successive riparian owners along the stream ever since 1865.

It is against the background of the aforegoing that the comprehensive clause relating to the water rights, discussed above, incorporated in the deed of sale between Pettigrew and Grant, and the latter’s evidence as examined in detail in this judgment, must be assessed. We are concerned with a reciprocal praedial servitude which obtains along the whole of the Helderberg stream. Even upon the assumption (which, as I have already indicated, is not supported by any evidence) that not every prior owner of Nooitgedacht or Navarre was, at the time he bought, aware of the servitude in issue, Grant, when he purchased, nevertheless knew that a reciprocal servitude in respect of the waters of the Helderberg stream had been observed by his immediate predecessor in title and was continuing to be exercised by all the riparian owners along the stream. As explained earlier in this judgment, Grant’s endeavours to restrict the operation of such servitude to summer water are untenable and cannot avail him.

The correct conclusion flowing from all the aforegoing is, in my judgment, that Grant’s—and a fortiori second appellant’s—resistance of applicants’ claim for registration of the servitude in issue is mala fide within the meaning of that expression as used in the context under discussion and that, consequently, such resistance cannot be upheld by the Court.

For the foregoing reasons the first special defence, accordingly, fails. The second of the afore-mentioned special defences is that only such of the applicants as were, at the commencement of the Water Act, 54 of 1956, beneficially exercising the right to take surplus water from the stream are entitled to enforce the servitude against appellants, and that fourth applicant, as the owner of Evergreen, is the only riparian owner so entitled. The latter part of this submission may not, on the facts, be entirely correct; but I find it unnecessary to pursue that aspect of the matter as, in my opinion, the earlier portion of the submission is, for the reasons set out below, in any event bad in law.

The essence of the submission thus advanced on behalf of the appellants is that sec. 10  of the Water Act must be construed as qualified by the provisions of sec. 4  of that Act. The sections in question read:

“10(1)Subject to the provisions of this Act, and to any existing right, every riparian owner is entitled to the use of so much of the surplus water of a public stream to which his land is riparian as he can beneficially use for domestic purposes, for the watering of his stock, and for agricultural and urban purposes, and to impound and store such surplus water for those purposes.

(2)A riparian owner referred to in sub-sec. (1) shall not be compelled to curtail his use of any portion of the said surplus water to which he is

Page 154 of [1968] 4 All SA 133 (A) View Parallel Citation

entitled in terms of the said sub-section in favour of a lower riparian owner for such owner’s domestic use or the watering of his stock or for agricultural or urban purposes, if such lower owner is not in terms of any agreement entitled to the use of such water for such purposes.

4(1)The provisions of this Act, except sec. 62, shall not be construed as affecting or derogating from—(a)

any right to water which at the commencement of this Act has been lawfully acquired, is possessed and is being beneficially exercised by any person;

(b)any right to water lawfully acquired by any person before the commencement of this Act for the purpose of supplying water to the public and existing at such commencement; or

(c)any right to water or to the use of water conferred upon any person or attaching to any piece of land by virtue of any private or special law not specifically repealed or amended by this Act.

(2)Nothing in this Act contained shall be construed as affecting or derogating from any rights, powers, duties or functions vested in, conferred upon or assigned to the Rand Water Board under any law.”

It is said that, in terms of sec. 10, appellants have an exclusive prior right to surplus water defeasible only by an “existing right”. This latter expression—so the argument runs—must be interpreted as confined to an “existing right” beneficially exercised at the commencement of the Act. This notwithstanding that “existing right” is defined in sec. 1  of the Act as follows:

“existing right” means—(a)

any right protected by para. ( a )   or ( b )   of sec. 25;(b)

any right to water acquired by any person by deed of servitude, agreement or order of a competent court; and

(c)any other lawfully acquired right to water in or upon a public stream”.

This somewhat remarkable proposition rests primarily upon the contention that sec. 4, being the first section of the second chapter of the Act which relates to the “control and use of private and public water” is a dominant section governing the provisions of that chapter. From the words “lawfully acquired” and “possessed” occurring in sec. 4 (1) ( a )   it is argued that that sub-section applies to all particular rights, including servitudes; and that, consequentially, any particular “existing right”, such as a servitude, set up in opposition to the rights to surplus water conferred by sec. 10  of the Act must always be an “existing right” which was “being beneficially exercised” at the commencement of the Act.

I am unable to agree with these submissions. Sec. 4  of the Water Act corresponds with sec. 138  of the Irrigation Act of 1912. But, in addition to such general provisions, the express reservation, in particular sections, of “existing rights” is a familiar feature of legislation relating to water. The Irrigation Act of 1912 contained, in addition to sec. 138, many instances of this, and so did the 1906 Cape Act. Sec. 7  of the latter provided that

“subject to the existing rights of others, every riparian proprietor is entitled . . .”

Dealing with that section in De Villiers and Another v. Barnard and Others, 1958 (3) S.A. 167 (A.D.) at p. 180, FAGAN, C.J., said:

“Obviously the term ‘existing rights’ here cannot mean the common law right of appropriating the water, for that would make the section nugatory and leave the common law unchanged. It can only refer to particular rights, e.g. rights enjoyed by servitude or agreement.” . . .

The terms of para. ( b )   of the definition of “existing rights” in the present Water Act are in conformity with the learned CHIEF JUSTICE’S remarks. Moreover, as appears from that paragraph, an agreement is, for the purposes under discussion, put on the same plane as an order of Court. Nor does the paragraph either contain any mention of beneficial exercise

Page 155 of [1968] 4 All SA 133 (A) View Parallel Citation

or draw any distinction between agreements concluded, or orders of Court made, before or after the commencement of the Act respectively. In contrast, sec. 4 (1) ( a )   is restricted to a right which “has been lawfully acquired, is possessed and is being beneficially exercised” at the commencement of the Act. Sec. 4  of the Act applies to a number of different activities, the exact ambit of which I do not for the purposes of this appeal find it necessary to attempt to define. For it is clear that sec. 10  of the Act confers a right to use surplus water conditioned only by (a) the provisions of the Act and (b) “any existing right”. This latter expression is specially defined in sec. 1  of the Act. In my opinion, sec. 10  must be read with that definition. So read, it presents no difficulty of construction. To read—as claimed by the appellants—”existing right”, where it occurs in sec. 10  of the Act, as qualified by the limitations (viz. (i) of having been lawfully acquired prior to the commencement of the Act and (ii) of being beneficially exercised) imposed by sec. 4 (1) ( a )   of the Act would, in my opinion, be wholly unwarranted. The second special defence accordingly also fails.

For the foregoing reasons, the appeals of both appellants are dismissed with costs.

BOTHA, J.A., WESSELS, J.A., potgieter, J.A. and jansen, A.J.A., concurred.

Appearances

L Kooy, SC and HS McKenzie - Advocate/s for the Appellant/s

WJ Vos, SC and LA Rose-Innes - Advocate/s for the Respondent/s

Balsillie, Watermeyer and Bosman, Cape Town; Kannemeyer, Wardhaugh and Ashman, Bloemfontein - Attorney/s for the Appellant/s

Nell and Jacobson, Cape Town; S and VA Rosendorff and Venter, Bloemfontein - Attorney/s for the Respondent/s

Parallel CitationPage 6 of 1968 (4) SA 1 (A)

Parallel CitationPage 7 of 1968 (4) SA 1 (A)

Parallel CitationPage 8 of 1968 (4) SA 1 (A)

Parallel CitationPage 9 of 1968 (4) SA 1 (A)

Parallel CitationPage 9 of 1968 (4) SA 1 (A)

Parallel CitationPage 11 of 1968 (4) SA 1 (A)

Parallel CitationPage 12 of 1968 (4) SA 1 (A)

Parallel CitationPage 13 of 1968 (4) SA 1 (A)

Parallel CitationPage 14 of 1968 (4) SA 1 (A)

Parallel CitationPage 15 of 1968 (4) SA 1 (A)

Parallel CitationPage 16 of 1968 (4) SA 1 (A)

Parallel CitationPage 17 of 1968 (4) SA 1 (A)

Parallel CitationPage 18 of 1968 (4) SA 1 (A)

Parallel CitationPage 19 of 1968 (4) SA 1 (A)

Parallel CitationPage 20 of 1968 (4) SA 1 (A)

Parallel CitationPage 21 of 1968 (4) SA 1 (A)

Parallel CitationPage 22 of 1968 (4) SA 1 (A)

Parallel CitationPage 23 of 1968 (4) SA 1 (A)

Parallel CitationPage 24 of 1968 (4) SA 1 (A)

Parallel CitationPage 25 of 1968 (4) SA 1 (A)

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Parallel CitationPage 26 of 1968 (4) SA 1 (A)

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Parallel CitationPage 27 of 1968 (4) SA 1 (A)

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998

Repealed ActAct 54 of 1956 has been repealed by s 163(1) of Act 36 of 1998