Mostert v The State

The two appellants (father and son) operated a sugarcane farming enterprise on the farm Dadelvlak in the Barberton district. The farm was riparian to the Lomati River and fell within the Lomati Irrigation District, which was established under the Water Act 54 of 1956. The Lomati Irrigation Board (complainant) regulated water abstraction from the river, requiring farmers to register pump stations and fit them with Water Administration Monitoring Systems (WAMS) to monitor water consumption. The appellants registered only one pump station (46), but in July 2004 the complainant discovered they had constructed a second unregistered pump station (46.1) without a WAMS. It was also discovered that the electrical wiring to the WAMS on pump station 46 had been tampered with by installing a bridging device, allowing the pump to operate without recording water consumption. The appellants were charged with seven counts including common law fraud and theft, as well as statutory offences under the National Water Act 36 of 1998. Both were convicted in the Magistrate's Court. On appeal to the High Court, most convictions were set aside except two statutory offences under the 1998 Act. The appellants appealed to the Supreme Court of Appeal, and the state cross-appealed on the fraud and theft charges.

• Whether it was competent to charge the appellants under the National Water Act 36 of 1998 when the irrigation board continued to operate under the 1956 Act by virtue of transitional provisions in section 98 of the 1998 Act
• Whether common law offences of fraud and theft could be prosecuted where statutory offences under the 1998 Act covered similar conduct
• Whether water flowing in a river (a water resource) is capable of being stolen under South African law
• Whether the evidence established the appellants committed fraud by providing false water consumption readings
• Whether the appellants contravened section 151(1)(e) of the 1998 Act by tampering with the WAMS measuring device
• Whether the appellants contravened section 151(1)(j) of the 1998 Act by unlawfully abstracting water in a manner detrimentally affecting a water resource

1. The appeal against convictions on counts 3 and 4 was dismissed. 2. The appeal against sentence on counts 3 and 4 was upheld and the sentence altered as specified. 3. The state's cross-appeal on count 1 (fraud) was upheld and the High Court's order setting aside the fraud conviction was set aside. 4. The state's cross-appeal on count 2 (theft) was dismissed. 5. Each appellant was sentenced to a fine of R20,000 or 12 months' imprisonment for fraud (count 1), wholly suspended for four years on condition of no further fraud conviction with imprisonment. 6. For counts 3 and 4 (taken together), each appellant was sentenced to a fine of R5,000 or six months' imprisonment (altered to be payable to the state rather than the complainant).

1. Section 98 of the National Water Act 36 of 1998 does not preserve the operation of the Water Act 54 of 1956 within irrigation districts; it merely preserves the existence and functions of irrigation boards as a temporary measure. The 1998 Act applies throughout South Africa and prosecutions under section 151 of that Act are competent in irrigation districts where irrigation boards continue to operate. 2. The existence of statutory offences does not, without express provision or necessary implication, exclude prosecution for common law offences where the conduct involved overlaps with elements of both the statutory and common law offences. 3. Fraud is established where a person intentionally deceives another by misrepresentation, causing prejudice or potential prejudice, regardless of whether there is a statutory obligation to provide truthful information. In the context of water regulation, providing false water consumption figures to a regulatory body prejudices its ability to discharge its statutory supervisory and regulatory functions. 4. Interference with a water measuring device by installing a bridging mechanism to prevent accurate recording of water abstraction constitutes tampering under section 151(1)(e) of the 1998 Act. 5. Abstracting water from a water resource without proper monitoring and accounting, in circumstances where a regulatory body is charged with supervising and regulating water use, constitutes conduct that detrimentally affects or is likely to affect a water resource under section 151(1)(j) of the 1998 Act.

The court expressed the view that water flowing in a river or stream (a water resource under the 1998 Act) is not capable of being stolen. Water in public streams was recognized under Roman law and Roman-Dutch law as res communes (things of common enjoyment available to all), incapable of being owned. The fact that the 1998 Act places water resources under the trusteeship and control of national government does not convert water into property capable of being owned and therefore stolen. The Act effectively does no more than place all water under state control, which control the state already exercised over public water before the 1998 Act. If the legislature had wished to create an offence of theft of water, it could have done so expressly. Instead, it created the statutory offence in section 151(1)(a) of using water other than as prescribed by the Act. However, the court noted it was not necessary to reach a final decision on this issue as the state had failed to establish that the appellants abstracted more water than they were entitled to.

This case is significant for clarifying the application of the National Water Act 36 of 1998 during the transitional period when irrigation boards established under the repealed Water Act 54 of 1956 continued to operate under section 98. It confirmed that the 1998 Act applied throughout South Africa despite the temporary preservation of irrigation boards, and that prosecutions under the 1998 Act were competent in irrigation districts. The judgment is important for establishing that the existence of comprehensive statutory offences does not necessarily exclude prosecution for common law offences where conduct overlaps. The case also provides authoritative guidance (albeit obiter) on whether water flowing in a river can be the subject of theft, suggesting it cannot be stolen as it remains res communes incapable of ownership despite the 1998 Act's trusteeship provisions. The case demonstrates how fraud can be established in the context of environmental regulation where misrepresentations prejudice a regulatory body's ability to discharge its statutory functions, even absent a specific statutory duty to provide accurate information.