Hexvallei Besproeiingsraad v Geldenhuys NO

The appellants were the Hexvallei Irrigation Board and the Worcester-East Water Users Association. Water to which the appellants' members were entitled originated in the Spek River in the Ceres district, Western Cape. The farm Grootvlakte was a riparian farm on the Spek River registered in the name of Spek River (Pty) Ltd, whose shares were held equally by two trusts including the Basie Geldenhuys Trust. The first to third respondents were trustees of this trust, with ML Geldenhuys as managing trustee. Geldenhuys also owned in his personal capacity the farm Matjiesrivier in the Inverdoorn area. Matjiesrivier was not a riparian farm on the Spek River and thus not entitled to water from it in that capacity. However, the Inverdoorn farms were entitled by a Cape Water Court order of 19 January 1960 to divert a limited quantity of water (maximum of two cusecs) from the Spek River to the Inverdoorn area. A division works was built with two sluices: sluice A (permanently open allowing two cusecs for Inverdoorn) and sluice B (adjustable, allowing 25.6 cusecs for riparian farmers). When the application was launched in September 2006, all dams on Grootvlakte and Erfdeel were full. Hexvallei closed sluice B so surplus water could flow to the Lakenvalley Dam. Geldenhuys and his foreman broke the lock, opened sluice B and locked it open, diverting more than two cusecs to the Inverdoorn area for Geldenhuys's use on his non-riparian farm Matjiesrivier, contrary to the 1960 court order.

• Whether the respondents were entitled to divert water through sluice B to the Inverdoorn area in excess of the two cusecs permitted by the 1960 court order
• Whether the appellants were required to prove as part of their cause of action that all riparian farmers' water needs had been met before seeking an interdict
• Whether the deproclamation of the state water control area affected water rights and permits
• What relief was appropriate in the circumstances

The appeal was upheld with costs, including costs of two counsel. The order of the court below was replaced with: (1) A declaration that no water may be conveyed to the Inverdoorn area that is diverted from the Spek River by means of the adjustable right bank sluice (sluice B); (2) The respondents must pay the costs jointly and severally, including costs of two counsel.

The binding legal principles established are: (1) A party entitled to a limited quantity of water from a public stream by court order may not divert water in excess of that entitlement to non-riparian land; such conduct is unlawful as it contravenes the court order. (2) A riparian owner entitled to the use of water from a public stream is entitled to an interdict against anyone who interferes with the course of that stream to their detriment. (3) Where a defendant diverts water in breach of a court order limiting their entitlement, the plaintiff need not prove as part of their cause of action that all other riparian farmers' water needs have been satisfied. (4) Deproclamation of a state water control area under the Water Act 54 of 1956 results in reversion to common law water rights principles under sections 9 and 10 of the Act; ministerial permits that were dependent on the continued existence of the state water control area cease to have effect. (5) Surplus water not extracted by riparian owners must flow to downstream riparian owners, not to non-riparian land, except to the extent permitted by valid court orders or other legal authority.

The court made obiter observations about the effect of article 9B of the Water Act 54 of 1956 and the proclamations issued under it. The court noted that if the Forel Dam on Grootvlakte had been enlarged after the relevant date, this would mean that Grootvlakte was storing more water than it was entitled to. However, because the appellants had not sought relief based on the taking of excessive quantities of water for Grootvlakte, and the respondents had not directly addressed the point (such as the date on which the Forel Dam was enlarged), it would be inappropriate to issue an order on this basis. The court also observed that practical problems might arise in enforcement (such as water traveling a long distance, canals leaking, riparian farmers failing to exercise their rights, etc.) but this did not justify leaving the appellants without remedy. The court also commented that evidence filed in reply to address alleged deficiencies in the founding papers should not have been struck out where it merely supplemented the cause of action rather than creating a new one, particularly where the evidence could scarcely be disputed and the respondents' claim to want to investigate and then dispute the evidence appeared feigned.

This case is significant in South African water law as it clarifies the legal principles governing the diversion of public water to non-riparian land. It affirms that court orders allocating water rights must be strictly complied with and that parties cannot unilaterally divert water in excess of their entitlements. The case also addresses the effect of deproclamation of state water control areas on pre-existing water rights and permits, holding that deproclamation results in reversion to common law principles under the Water Act 54 of 1956. The judgment reinforces the principle that riparian owners entitled to water from a public stream are entitled to an interdict against anyone who interferes with the course of that stream to their detriment. It also clarifies pleading requirements in water law disputes, holding that it is not necessary to prove that all riparian farmers' needs have been met where the defendant's conduct is clearly in breach of a court order limiting their water entitlement.