Mostert v The State

The appellants, a father and son farming sugarcane on riparian land along the Lomati River, abstracted water for irrigation. They were required by the Lomati Irrigation Board to register pump stations and install a Water Administration Monitoring System (WAMS) to measure water use. While only one pump station was registered and metered, the appellants constructed a second unregistered pump station without a WAMS and interfered with the wiring of the registered WAMS so that water could be pumped without being recorded. They reported false water-use figures to the board. They were charged with fraud, theft, and statutory offences under the National Water Act 36 of 1998 for tampering with measuring devices and unlawfully abstracting water.

The appeal against convictions on counts 3 and 4 (statutory offences under the National Water Act) was dismissed but sentences were reduced. The State’s cross-appeal on fraud was upheld and the fraud convictions reinstated with suspended sentences. The cross-appeal on theft was dismissed and the theft conviction set aside.

The case clarifies the relationship between the National Water Act and pre-existing irrigation boards, confirming that the 1998 Act applies fully despite the continued existence of boards under s 98. It affirms that statutory regulation of water use does not automatically exclude common law crimes such as fraud. It also confirms, albeit largely in obiter, that water in a public river remains incapable of theft under South African law.