Le Roux NO and Others v Botha NO and Others

The dispute concerned registered water servitudes (aquaehaustus and aquaeductus) over agricultural land through which the Wolvenkloofstroom river runs. Following subdivision of a farm in 1990, the dominant farms (now owned by the Goudyn Plase Trust) enjoyed servitudes over Portion 3 (the servient farm, later owned by the TC Botha Trust) to draw and lead water from the river. After transfer of the servient farm to the Botha Trust in 2012, the Goudyn Trust blocked a furrow supplying water to the servient farm’s dam. A flood in November 2013 destroyed the original weir and extraction pipe. The Botha Trust then constructed a new weir and abstraction works upstream without prior environmental authorisation, supplying all farms but allegedly reducing the water available to the dominant farms. The Goudyn Trust sought declaratory and interdictory relief, including demolition of the new works, alleging infringement of its servitudal rights and contraventions of the National Water Act and NEMA. The High Court dismissed the application with costs. On appeal to the SCA, the parties settled the merits and placed only the issue of costs before the court.

The appeal succeeded to the extent that the High Court’s order was set aside and replaced by a detailed consent order embodying the settlement between the parties. No order as to costs was made in either the application or the appeal.

The case illustrates the SCA’s approach where complex servitude and water-law disputes are resolved by settlement on appeal, particularly its reluctance to make costs orders that may undermine future cooperation between neighbouring landowners. It also highlights the interaction between private-law servitudes and public-law regulation under the National Water Act and environmental legislation.