Cillie v Geldenhuys

The respondent, Geldenhuys, owned the farm Matjiesrivier, which lay downhill from the appellant Cillie’s farm, Uitkomst. A spring situated on Uitkomst had, for decades, supplied water by gravity to Matjiesrivier. In the 1950s, the then owner of Matjiesrivier excavated the spring, installed a pipeline and diverted all the spring water to Matjiesrivier, openly and without permission. This arrangement continued for more than 30 years. In 1998, after purchasing Uitkomst, Cillie drilled a borehole on his land. Pumping water from the borehole reduced or dried up the spring. Geldenhuys applied to the High Court for a declaration that he had acquired, by prescription, (a) a servitude entitling him to all the water from the spring and (b) a servitude of aqueduct, together with an interdict preventing Cillie from abstracting borehole water that affected the spring. The High Court granted the relief. Cillie appealed to the Supreme Court of Appeal.

The appeal succeeded in part. The existence of the two prescribed servitudes was confirmed, but the interdict preventing Cillie from abstracting underground water by means of a borehole was set aside.

The case is a leading authority on acquisitive prescription of praedial servitudes in South African law. It clarifies the distinction between positive and negative servitudes, confirms that servitudes acquired by prescription are real rights binding without registration or notice, and limits the extent to which a servitude over spring water restricts a servient owner’s rights to underground water.