Reportable: Yes / No
Circulate to Judges: Yes /
No
Circulate to Magistrates: Yes / No
IN THE HIGH COURT OF SOUTH AFRICA(Northern Cape Division)
Case no: 299\05Date heard: 20050902Date delivered: 20050909
In the matter of:
DIAMOND CORE MINING & OPERATION (PTY) LTD APPLICANT
versus
ALETTA HENDRINA VAN DEVENTER N.O. 1ST RESPONDENT
JOHANNES FREDERICK VAN DEVENTER N.O. 2ND RESPONDENT
CHRISTOFFEL ARNOLDUS VAN DEVENTER N.O. 3RD RESPONDENT
MARIANA VAN DEVENTER N.O. 4TH RESPONDENT
Coram: MAJIEDT J
JUDGEMENT
MAJIEDT J:
1. In this opposed application the applicant seeks relief which is
based largely upon the mandament van spolie. The applicant’s
case is premised on an alleged peaceful and undisturbed
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possession of:
a) the right to draw water from the Vaal River adjacent to the
respondents’ property;
b) the right to draw water over the respondents’ property;
c) a pipeline which it had installed over the respondents’ property.It is the applicant’s case that it has been spoliated of the
aforementioned possession by the respondents by virtue of being
wrongfully dispossessed thereof.
2. In essence the respondents’ defence on the papers is one of a
denial that the applicant had been in peaceful and undisturbed
possession. In addition to the aforegoing, certain further defences
in law were raised in the heads of argument on behalf of the
respondents, namely:
a) that the applicant has delayed for more than a year to launch
this application and should therefore show special
circumstances justifying such delay before the application
can be considered;
b) that an order based on the mandament van spolie would have no practical effect;c) that any servitude which may have existed had lapsed due to the abandonment thereof by the applicant or its predecessor in title.4.1 The facts herein are fairly simple and are mostly common cause
between the parties. The applicant carries on business as a
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diamond mining and exploration company and, although this has
been to some extent disputed, it can be accepted that the
applicant is the successor to a company known as Mazal Mining
(Pty) Ltd having undergone a name change during February 2003.
In this judgement any reference to “the applicant” includes the
present applicant as well as its predecessor, Mazal Mining.
4.2 The respondents are the trustees of the De Bad Trust which is the registered owner of the farm De Bad, no. 155. The applicant is the registered owner of portion 18 (a portion of portion 17) of the farm Paardeberg East and the applicant also owns the mineral rights in respect of its aforementioned property.4.3 The applicant has established a diamond processing and sorting plant on its aforementioned property. This plant requires large amounts of water for its operation and such water was being drawn from the Vaal River, which is approximately some 18 kilometres from the applicant’s aforementioned plant.4.4 The respondents’ property as aforementioned is adjacent to the Vaal River and in order to convey water from the river to its property, the applicant had laid a water pipeline over the respondents’ aforementioned property as well as two other properties belonging to a third party in order to reach the applicant’s plant. The requisite consent was obtained by the applicant from the respective property owners for the installation of the pipeline over their land.4.5 The applicant had received permission from the late Mr. Van Deventer, the deceased spouse of the first respondent, to install the pipeline over the respondents’ property. In granting such consent, the late Mr. Van Deventer had represented the aforementioned De Bad Trust. 4.6 The applicant had also received the requisite government approval to draw water from the Vaal River in terms of section 28A of the Environment Conservation Act, 73 of 1989. 4.7 The pipeline which the applicant had constructed ran some 7.296 kilometres from the Vaal River over the respondents’ property and a
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further 11.3 kilometres over the other two farms owned by one Du Toit and his wife, known as Uitkyk, to reach the applicant’s diamond and processing plant on its farm Paardeberg East.5. It is further common cause that there had been an existing pipeline
which belonged to the respondents and which they had utilised for
their farming operations. As was agreed further between the
parties, a water retention dam was constructed by the applicant on
the respondents’ property where the aforementioned existing
pipeline terminated. This dam was for the joint use of the applicant
and the respondents. Water was conveyed from the Vaal River
along this existing pipeline to the retention dam which had been
constructed by applicant. The applicant had then laid its pipeline
from the water retention dam towards its own property across the
respondents’ property and over the adjacent farm Uitkyk. It is also
further common cause that by agreement between the parties, the
new pipeline which was constructed by the applicant contained
three abstraction points between the water retention dam and the
extreme boundary of respondents’ property from which 10 000
litres of water per abstraction point per day could be drawn by the
respondents for their own usage.
6. In accordance with the agreement mentioned hereinbefore, the
applicant constructed a water retention dam on the respondents’
property in and during 2000 and thereafter constructed the
pipeline. Subsequent to the death of the late Mr. Van Deventer
during December 2002, his widow the first respondent, together
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with the other respondents managed the running of the farming
operations on the respondents’ property. During approximately
April 2003 the applicant had ceased its operations at its diamond
mining and processing plant at Paardeberg East. The applicant
avers that this was only a temporary cessation of activities pending
a restructuring and reorganization of the applicant and its mining
operations. A labourer in the employ of the applicant who, by
consent of the respondents, had resided on the respondents’
property with a view to supervising and maintaining the pipeline,
was also withdrawn from the respondents’ farm during
approximately April 2003.
7. The respondents interpreted the aforementioned withdrawal of the
applicant’s labourer and the cessation of its activities at its mining
operations together with the fact that, according to the first
respondent’s answering affidavit, they were not able to make
contact with the applicant, to mean that the previous agreement
between the respondents (represented by the late Mr. Van
Deventer) and the applicant’s predecessor, Mazal Mining (Pty) Ltd,
had lapsed. The respondents aver further that due to this lapse of
the agreement, all the water pipes, pumps and other accessories
erected by the applicant had by agreement between the parties
become the property of the respondents in their capacities as
trustees of the De Bad Trust.
8. The respondents conclude in their answering affidavit that Mazal,
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as predecessor of the applicant, had since April 2003 not been in
peaceful and undisturbed possession of any of the pipes, pumps or
any other accessories on the respondents’ farm.
9.1 It is convenient to deal firstly with the aspect of delay in bringing
this application as raised by Mr. Van Rhyn for the respondents in
his heads of argument.
9.2 It is settled law that there is a common law rule which is used as a
guide to the effect that an applicant must launch an application
based on the mandament van spolie within a year, otherwise
special circumstances must be shown before such an application
can be proceeded with.
See in this regard: Le Riche v PSP Properties CC and others
2005(3) SA 189 (C) at 198 EF (par. 25) and at 203 CE (par. 43).
9.3 On behalf on the respondents Mr. Van Rhyn has submitted that the
applicant had ceased the usage or possession of the pipeline since
April 2003 and that a period of more than two years has already
elapsed before this application was launched. It was also
submitted that the applicant’s aforementioned failure to bring an
application within one year of the alleged dispossession must lead
to an inference that it has abided in the dispossession.
See: CG Van der Merwe Sakereg 2nd edition at 147.
9.4 In my view there is no merit in this contention. In the founding
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affidavit on behalf of the applicant, Botoulas, who is its managing
director, makes the averment that the pipeline had last been
inspected during the final quarter of 2003 by its mine manager, a
Mr. Swanepoel and by an engineer who had installed the pipeline,
a Mr. Mynhardt. During that inspection the pipeline was found to
be intact. At this stage the applicant had already temporarily
suspended its operations at the Paardeberg East plant, according
to Botoulas. It is further alleged by Botoulas that the applicant only
became aware during 26 October 2004 through another inspection
that the pipeline had been removed by the respondents.
Consequently, so the applicant avers, it has launched the
application within a period of one year of becoming aware of the
dispossession (the notice of motion was issued on 30th March
2005). On behalf on the respondents, Mr. Van Rhyn has
countered this contention by pointing out that any failure to
discover the dispossession earlier, was entirely the fault of the
applicant, having abandoned its operations at Paardeberg East. It
is, however, important to point out that in response to the
aforementioned averments of Botoulas in the founding affidavit, the
first respondent in her answering affidavit on behalf of all the other
respondents, indicates that she has no knowledge of these
averments and has required applicant to prove same.
9.5 I am of the view that the aforementioned response does not
constitute anything else but a bare denial. Based on the rule in
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Plascon Evans Paints v Van Riebeeck Paints 1984(3) SA 623
(A), this cannot be said to be a genuine dispute of facts raised by a
respondent whereby such a respondent’s version is to be accepted
in an opposed application such as the present one.
Consequently I am of the view that the applicant’s averment that it
has become aware of the dispossession only during October 2004
must stand and the point taken by Mr. Van Rhyn for the
respondents that there has been an undue and unexplained delay,
must be rejected.
10. I turn now to the aspect relating to the practical effect that any
order as sought by the applicant would have herein. A Court has a
discretion to refuse an application for the mandament van spolie
where, due to effluxion of time before the application had been
launched, the relief granted to an applicant would have no practical
effect.
See in this regard: Jivan v National Housing Commission
1977(3) SA 890 (W) at 893 AB.
This is so because a delay on the part of an applicant to bring his application may either confirm or display a state of mind in which the applicant had acquiesced the alleged dispossession.
See Jivan v National Housing Commission supra at 893 H.
11. Mr. Van Rhyn has submitted that the pipes which are required to
conduct the water from the river to the plant can no longer be used,
since it has been removed during 2003. The simple answer to this
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is that on the respondents’ papers the pipes are presently in
storage at the respondents’ farm. Furthermore Mr. Van Rhyn’s
submission that the applicant does not require the pipes at present
since it has dismantled the plant, has no merit since the applicant
has indicated quite clearly that it is in the process of having a new
plant manufactured for installation at Paardeberg East.
I am consequently of the view that this argument must also fail.
12. The most important defence put up by the respondents and one
which is not entirely without merit, is the averment that the
applicant has not been in peaceful and undisturbed possession of
the pipeline. At the outset I must emphasize that one should draw
a clear distinction between the pipeline as a unit and the individual
pipes. It is common cause on the papers that the respondents
have removed the pipes on their property (i.e. from the retention
dam to the boundary) so that the pipeline as a unit is no longer
intact and is therefore at the present stage unusable to the
applicant. The question that must be answered is whether the
applicant had in fact been in peaceful and undisturbed possession
at the time when the respondents had removed the pipes from its
property. It is quite puzzling that the respondents do not in their
answering affidavit as deposed to by the first respondent on their
behalf, disclose to the Court the exact date on which the
dismantling and removal of the pipes had occurred. Be that as it
may, what is required to be determined herein, is whether after
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April 2003 the applicant had in fact been in peaceful and
undisturbed possession of the pipeline. As I have already
indicated, the respondents’ case is that the removal of the labourer
employed by the applicant and who had resided on the
respondents’ farm with the latter’s consent, together with the
cessation of operations by the applicant at Paardeberg East,
amounted to the applicant relinquishing possession of the pipeline.
13. With regard to the right to draw water from the Vaal River over the
respondents’ land, the applicant in this matter is required to
establish quasi possession of the incorporeal right. That means
that the applicant has to show on a preponderance of probabilities
that it had actually exercised the right or that there is some outward
manifestation of its use. It is not required of the applicant to prove
at this stage that it is entitled to this right to draw water from the
river and over the respondents’ land.
See in this regard: Bon Quelle Eiendoms Beperk v
Munisipaliteit van Otavi 1989(1) SA 508 (A) at 514;
Telkom v Xsinet 2003(5) SA 309 (SCA) at 313 AB.Furthermore it is important to bear in mind that in our law a possessor is not required to show continuous occupation in order to maintain possession. Sufficient continuity of occupation needs to be determined on the facts of each case which may involve an enquiry into the nature of the thing possessed and the type of use to which it has been put.
See in this regard: Nienaber v Stuckey 1946 AD 1049 at 1058.
14. Mr. Peter for the applicant is correct in my view in his submission
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that on the common cause facts in this application the applicant
had clearly and unequivocally exhibited its right to draw water by
the construction and use of both the retention dam and pipeline. In
my view the applicant has in the circumstances clearly established
quasi possession. There can be no argument against a finding that
at April 2003 the applicant was in fact in peaceful and undisturbed
possession of the pipeline. Subsequent to April 2003, the fact that
the applicant had temporarily suspended its operations for
restructuring and reorganization purposes, does not to my mind
constitute an outward manifestation of an abandonment or
relinquishing of its possession. On the contrary, the respondents
took to selfhelp in removing the pipes in my view. The averment
on behalf of the respondents that they were unable to make
contact with the applicant is quite unpersuasive and falls to be
rejected in my view. The applicant’s averment that it had clear
signboards displaying its contact details on its plant at Paardeberg
East, which is some 25 kilometres away from the respondents’
farm, had not been disputed. In addition, it would appear that Mr.
Potgieter, an attorney from the firm Duncan and Rothman, had
been in contact with both the first respondent and the applicant and
its predecessor, Mazal Mining. It is therefore incomprehensible to
me how the first respondent can aver in her answering affidavit that
she had been unable to make contact with the applicant to
establish whether it had in fact abandoned possession of the
pipeline or not. The respondents also sought to rely on hearsay
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evidence in this respect. This hearsay related to information
gleaned from a Jaco du Toit from the neighbouring farm Uitkyk.
Mr. Peter for the applicant has argued that this hearsay should be
disregarded completely and Mr. Van Rhyn has, quite correctly so,
not contended otherwise. In the premises, I am therefore of the
view that the applicant has made out a case that it had in fact been
in peaceful and undisturbed possession of the pipeline, even after
April 2003.
15. As regards the point on the lapse of the servitude, Mr. Van Rhyn
has not elaborated much on the submissions contained in his
heads of argument. In any event, my findings in the immediately
preceding paragraph spells the death knell of that particular
argument, which is closely related to the question whether the
applicant had in fact been in peaceful and undisturbed possession
at the material times. The de facto servitude of aqueduct was, to
my mind, quite clearly in place at the time of the act of spoliation by
the respondents. In this regard I refer to my reasons set forth in
the preceding paragraph. There can in my view be no room for an
argument based on an abandonment of its rights by the applicant
on the proved facts of this case.
16. By virtue of the aforementioned findings and the reasons therefor,
the applicant is entitled to the relief sought. The applicant has
couched its order in a form which is required to restore full and
proper possession to it as was the case prior to spoliation.
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See in this regard: Sebastian and others v Malelane Irrigation
Board 1950(2) SA 690 (W).
I am satisfied that an order in the terms sought in the notice of
motion would afford the applicant the relief that it is entitled to.
17. I consequently issue the following order:
a) The respondents are hereby ordered and directed to
forthwith restore possession to the applicant of the
pipeline along the route demarcated in green in
Annexure E to the founding affidavit of Theodoros
Botoulas (hereinafter in this order referred to as
“Botoulas”).
b) The respondents are ordered and directed to forthwith restore possession to the applicant of the right to draw water from the Vaal River via the retention dam built on their property at the point where the pipeline along the route demarcated in black meets the pipeline demarcated in green in Annexure E to the founding affidavit of Botoulas.c) The respondents are hereby ordered and directed to forthwith restore possession to the applicant of the right to draw water across the respondents’ farm remaining extent De Bad 155 Kimberley, from the point where the pipeline along the route demarcated in black meets the pipeline demarcated in green in Annexure E to the founding affidavit of Botoulas.d) The respondents are hereby ordered and directed to forthwith repair and reinstall the applicant’s pipeline from the said retention dam along the route in green in Annexure E to the founding affidavit of Botoulas conforming to the specifications set forth in paragraph
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22 of the founding affidavit of Botoulas.e) Failing compliance with paragraphs (a), (b), (c) and (d) above, the Sheriff of this Court is hereby ordered and directed to do all such things and take all such steps necessary to give effect to paragraphs (a), (b), (c) and (d) above.f) The respondents are hereby ordered to pay the costs of this application jointly and severally, the one paying the other(s) to be absolved.
___________SA MAJIEDT JUDGE
FOR THE APPLICANT : ADV J PETER instructed by Duncan and Rothman
FOR THE DEFENDANT : ADV AJR VAN RHYN SC instructed by André Potgieter and Partners
Date of Hearing : 20050902Date of Judgement : 20050909
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