Impala Water Users Association v Lourens NO and others

Supreme Court of Appeal -87/03 Hearing date: 24 February 2004
  Judgment date: 26 March 2004
Water - National Water Act 36 of 1998 - Mandament van Spolie - whether rights of water users who were entitled to rights under previous Water Act 54 of 1956 capable of protection by mandament of spolie when restricted by water supplier purportedly in terms of s59(3) of Act 36 of 1998 - incidence of onus to prove outstanding water use charges were legally payable.

Media Summary of Judgment

From: The Registrar, Supreme Court of Appeal

Please not that the media summary is intended for the benefit of the media and does not form part of the judgment of the Supreme Court of Appeal



On 26 March 2004 the Supreme Court of Appeal dismissed with costs an appeal brought by the Impala Water Users Association against an order granted by Van der Reyden J in the Natal Provincial Division ordering it to remove locks from sluices which allowed the flow of water from the water canals of the Bivane-Paris dam near Pongola in KwaZulu Natal to reservoirs on the farms of certain members of the association who grow sugar cane one the farms and need water for this purpose.

The association had put the locks on the sluices so as to restrict the flow of water to the farms because, so it alleged, the water use charges owed by the farmers were unpaid. The farmers had argued that the water use charges claimed by the association were not legally payable by them because the association had included an amount of R560 per hectare per year in respect of a dam financing component which the farmers said was not legally recoverable from them. Although cases were pending in the Natal High Court between the association and some of the farmers in which the legal enforceability of the dam financing charge was going to be considered, the association decided in January 2003 to use its powers under section 59(3) of the National Water Act to restrict the flow of water from the Bivane-Paris dam to the farms of it’s members who had withheld the dam financing component of the water use charges payable by them. On 1 February 2003 the association’s servants locked the sluices. An urgent spoliation application brought by the farmers against the association for the removal of the locks was brought on the following day and granted on 14 February 2003.

The Supreme Court of Appeal rejected the association’s contention that the farmers’ rights were merely contractual rights which could not be protected by spoliation proceedings. It also held that the association could not use its powers under section 59(3) of the National Water Act to restrict the supply of water to a property because water use charges had not been paid unless it could show that the water use charges were legally due and that it had not succeeded in doing so in the present case.