S v Mostert and Another 2010 (2) SA 586 (SCA)

/ / News, 2018, Commercial Law


Mr Mostert and his son (the “Appellants”), who were sugar cane farmers, charged with several offences in terms of the common law, as also contravention of the National Water Act 38 of 1998 (the “NWA”). The charges stemmed from their abstraction of water from the Lomati River.

After it came to the attention of the Lomati Irrigation Board that the Appellants had installed a pump station in order to abstract water from the river without declaring same and fitting same with the appropriate water abstraction meter, the Lomati Irrigation Board laid criminal complaints, which culminated in the Appellants being arrested and arraigned in in the Magistrate’s Court on seven criminal charges which include theft and contravention of section 151 of the NWA.

The first appellant was convicted on all charges and the second appellant was convicted on 6 of the seven charges. Accordingly, they were sentenced to pay either a fine or face imprisonment in terms of the NWA.

On appeal to the High Court, the appellants’ convictions and sentences on five of the seven charges were set aside, leaving only the convictions in respect of the NWA. The Appellants further obtained leave from the High Court to appeal the remaining two convictions and their sentence.

The State further obtained leave to appeal on points of law in respect of the High Court’s decision in respect of the charges of fraud and theft.



The Supreme Court of Appeal was called on to answer the following questions:

  • whether it is possible to steal water from a river;
  • whether the Lomati Irrigation Board had jurisdiction over the Lomati River; and
  • whether the NWA replaced the common law in respect of matters related to water.



The court confirmed that even though the Lomati Irrigation Board had been established in terms of the erstwhile National Water Act, the NWA contained a sunset clause which allowed the Lomati Irrigation Board to continue to exist, thereby affording it the rights to investigate the conduct of the Appellants.

In addition, the court reasoned that anyone who commits an offence referred to in section 151 of the NWA may be charged under the NWA even if the offence is committed in the jurisdiction of a water board which was established under the previous National Water Act and which continues to exist by virtue of the sunset clause in the NWA. Accordingly, the charges against the Appellants in terms of section 151 of the NWA were correctly preferred by the State.

The court found that the High Court misdirected itself in finding that the Legislature intended to create a closed list of offences which superseded and excluded common law offences when it enacted the NWA, however, river water is res communes and therefore cannot be the subject of a charge of common law theft.



The Court held that the Appellants were guilty of fraud because they intentionally misrepresented the true water abstraction data by concealing the second water pump and not disclosing of the consumption on same.

In addition, the Appellants were properly charged and guilty of contravention of section 151 of the NWA by unlawfully abstracting water from the river and not accounting for same with the Lomati Irrigation Board.

Although the convictions for theft and fraud were taken together for purposes of sentencing by the High Court, despite the fact that the convictions for theft were set aside, the SCA held that the High Court had been lenient in its sentencing in this regard, and upheld the sentence in this respect.



This case illustrates that commonly enjoyed amenities (res communes) cannot be furtively appropriated and that the even though the Legislature may enact laws to deal with specific subject matter, if a provision is not specifically enacted that existing common law crimes in respect of the subject matter are replaced, the common law continues to apply.

Written by Kgomotso Morudu and supervised by Omphile Boikanyo, 26 November 2018

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