|This matter dealt with the question of prescription insofar as it relates to the Appellant’s claim for damages against the Minister of Water and Environmental Affairs (the “Respondent”) for the loss suffered as a result of the Respondent’s alleged unlawful failure to maintain an irrigation canal. The failure, on the part of the Respondent, led to the Appellant being unable to water crops on his Farm, causing him a great financial loss. In this regard, the Respondent raised a special plea of prescription, which the Court a quo found in its favour. To this end, the Supreme Court of Appeal (“SCA”) granted the Appellant leave to appeal.
The Appellant is the executor in the estate of the late Petrus Willem Terblanche, the deceased, who owned Portion 97 of the Farm Cornelia in the Koppies district. The Respondent, the Minister of Water and Environmental Affairs, is responsible for and has authority over the nation’s water resources and their use, including the equitable allocation of water for its beneficial use and the redistribution.
In terms of the National Water Act 36 of 1998 (“the Act”), the deceased had exercised and enjoyed an existing lawful water use as envisaged by the Act. That being said, in terms of the Rhenoster River Government Water Scheme (the “Scheme”) the deceased was only entitled to irrigate an area not exceeding 5 (Five) hectares (which was far less than the area the deceased’s Farm covered). The deceased argued that with him not being able to irrigate the 5 (Five) hectares of land, on which he grew sorghum for a period of seven years, his production was significantly less. Thus, the deceased claimed the value of the tonnage of the grain sorghum that had been lost due to the lack of irrigation.
In and during 2002 a drought struck the area where the deceased’s Farm was situated, which led to the Municipality having to implement water restrictions in and during 2003. The drought continued until January 2005. Despite the fact that during February 2005 the Koppies dam was half full and that water was clearly available, the Respondent did not resume with water supply to the deceased’s property. The irrigation canals had become dilapidated to the point that they could not be used resulting in the deceased, as well as the other members of the Scheme, abandoning the Scheme all together. In addition, the deceased ceased to pay any of the levies due, owing and payable, as a water user under the Scheme. This resulted in the deceased accumulating an account of approximately R44,000.00 (Forty Four Thousand Rand) of unpaid water use charges by January 2005, which charges he failed to pay for years to follow. This notwithstanding, at no stage did the deceased seek to be supplied with water under the Scheme.
The Appellant went on to institute these proceedings claiming damages allegedly sustained as a result of the Respondent not having supplied water to the Farm from 2007 to 2010. The Appellant alleged that, during 2003, Officials of the Respondent suspended the water supply to the deceased’s Farm, thereby infringing upon his water use rights which resulted in him being unable to irrigate his permitted 5 (Five) hectares. Accordingly, the deceased suffered damages in the amount of R250,000.00 (Two Hundred and Fifty Thousand Rand), being the value of the sorghum lost. The Respondent alleged that the Appellant’s claim for damages prescribed before the issue of summons. The Court a quo upheld this argument and found in favour of the Respondent.
On appeal, the Appellant argued that the claim in question had been to enforce a right which was an incident of ownership, essentially the right to abstract water which is limited by statute in this instance. Therefore, the water use right in question was regarded as a real or statutory right as opposed to a mere personal right. This meant that the damages incurred in this regard did not prescribe in the same way as a personal right would have.
|The SCA emphasised that, for the present purpose, the water use right did not constitute a mere contractual right to abstract water and that a failure to exercise such a right did not lead to it becoming prescribed. However, a right to use water is not unconditional. As such the deceased did not have carte blanche to abstract water without any restriction. In fact, the Act prescribes restrictions upon the permissible use of water, this is limited to 5 (Five) hectares of land and a specific quantity. Deviation from the prescribed limitations demanded that a party apply to be allocated a greater quota of water, which allocation would be subject to various charges.
The Court noted that the deceased failed to pay water charges during the period within which damages were being claimed and never sought to abstract water during that period either. Accordingly, it would be irrational to accept that the deceased was entitled to recover damages for a breach of a right to use water, whatever that nature of the right, which had in no way purported to exercise during the years in question. On this basis, there was no merit in the argument that an actionable, on-going, breach of the Appellant’s water use right existed. As such, the decease’s claim would fail.
Notwithstanding the above, the deceased’s claim for damages, flowing from the omission on the part of the Respondent to maintain the water canal which rendered it inoperative by 2003, was susceptible to prescription given that fact that such negligent conduct would have arisen by 2003. Section 12(3) of the Prescription Act 68 of 1969 (“the Prescription Act”) provides that a debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises. Nothing to the contrary suggested that the deceased was not aware of the degradation of the canals that had taken place since 2003 nor of the fact that the State had allowed this to happen. However, the Court held that it was the failure, on the part of the Respondent, to maintain the canals which led to the canals becoming inoperable, and this is when the cause of action arose. As such, the cause of action had arisen in 2003 (being the stage at when the canals were not capable of being used). That being said, nothing to the contrary suggests that the prescriptive period for a delict, as contemplated in the Prescription Act is anything other than 3 (Three) years.
In Summary, the deceased’s failure to meet the preconditions for an entitlement to exercise his right to water, by making an application for a right to use water and the payment of his levies in this regard, meant that the claim for damages had prescribed. In these circumstances the SCA found that the court a quo correctly upheld the plea of prescription.
A water use right is a conditional right, with its abstraction being subject to legislative constraints, in particular the National Water Act 36 of 1998. Moreover, the damages arising out of the negligence on the part of the Minister of Water and Environmental Affairs is subject to the prescription period for a delictual claim, as contemplated in the Prescription Act 68 of 1969.
Written by Kirsten Chetty and Jasvir Sewnarain