City of Cape Town (CMC Administration) v Bourbon-Leftley NO and Another

The City of Cape Town owned the Wemmershoek Dam and a pipeline supplying water. The respondents, as trustees of the Bourbon-Leftley Family Trust, owned the farm Môrelig, which benefited from a registered servitude of aqueduct entitling it to draw a maximum annual allocation of water from the pipeline. The servitude originated from a 1952 agreement with riparian owners and was registered against the title deeds in 1964, specifying a capped allocation, partly free and partly at discounted rates. From 1999 to 2001 the trust consumed water far in excess of its maximum allocation. This overconsumption resulted from persistent meter-reading errors by the City’s officials, who failed to multiply readings by the required factor. The trust was unaware of the true extent of its consumption and was only informed in 2001, after which it curtailed use. The City claimed approximately R1.7 million for excess water used, alleging a tacit contractual term requiring payment for excess at the going rate, alternatively damages in delict for misappropriation of water.

The appeal was dismissed with costs; the City’s contractual and delictual claims were both rejected.

The case is significant for its clear restatement of the stringent requirements for inferring tacit contractual terms in South African law, especially in long-standing servitude agreements. It also illustrates the evidentiary burden on a plaintiff claiming delictual damages for misappropriation of resources, emphasising proof of actual loss.