Supreme Court of Appeal of South Africa
MEDIA STATEMENT
From:The Registrar, Supreme Court of Appeal
Date:Wednesday31 May 2006
Status:Immediate
On 31 May 2006 the Supreme Court of Appeal delivered judgment in P E Lourens and Others v Impala Water Users Association.
The appellants are irrigation farmers in the Pongola area. They are members of the Association, a water management institution established under the National Water Act 36 of 1998. The Association supplies water from the Paris-Bivane dam to the appellants’ farms. It debits water use charges against users, a substantial part of which is made up of the cost of constructing and maintaining the dam. The Association and certain of its members fell into dispute over the Association’s right to recover the dam construction and maintenance component from its members.When the appellants withheld payment of such costs the Association, without an order of court restricted the flow of water to their farms, purporting to rely on powers conferred by s 57(3) of the Act.
The members subject to interference with their water supply obtained a spoliation order against the Association in the High Court during 2004. The Association appealed unsuccessfully to the SCA. While that appeal was pending the Association applied to the High Court for authority to restrict the supply and obtained such an order. The farmers appealed.
The SCA has now held that (a) the Association does have the power (under s 57 of the Act) to make and collect water use charges (including charges derived from the construction and maintenance of the dam) and (b) that it was entitled to prove the indebtedness of the farmers in the application for the order restricting their water supply. The SCA held, however, that the proof furnished by the Association had been insufficient to prove the indebtedness of the farmers with certainty.
The appeal was accordingly upheld and the order of the High Court authorizing the Association to reduce the flow of water to the appellants’ farms was set aside.
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