THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1038/15

In the matter between:
RAND WATER BOARD

APPELLANT
and
BIG CEDAR TRADING 22 (PTY) LTD
RESPONDENT

Neutral citation: Rand Water Board v Big Cedar 22 (Pty) Ltd (1038/15)
[2016] ZASCA 177 (25 November 2016)
Coram:
CACHALIA, SERITI, WALLIS and PILLAY JJA and
SCHIPPERS AJA
Heard:
8 November 2016
Delivered: 25 November 2016
Summary: Statutory power to lay pipeline across private land – s 24(j) of
Act 17 of 1950 – no servitude registered over land in respect of pipeline –
property sold to new owners – no right to claim removal of pipeline –
court not empowered to order the registration of servitude in respect of
pipeline – no claim for compensation by new owner against water board.

ORDER

On appeal from: Gauteng Division, Pretoria of High Court (Tsoka J
sitting as court of first instance):
(a) The appeal is upheld with costs, such costs to include those
consequent upon the employment of two counsel.
(b) The order of the court below is amended to read:
‘The plaintiff’s claim is dismissed with costs.’

JUDGMENT

Wallis JA (Cachalia, Seriti and Pillay JJA and Schippers AJA
concurring)
Introduction
[1] In 1971 or 1972 the appellant, the Rand Water Board (Rand Water)
laid the H16 underground pipeline over various properties including the
remaining extent of Portion 1 of the farm Klipfontein No 268JR. In 1997
it laid a further underground pipeline, the H29 pipeline, across the same
property. The position of the two pipelines on that property appears from
a survey diagram SG10602/1998 approved by the Surveyor General. At
the time the two pipelines were laid, the property in question was owned
by various members of one family, the precise ownership having altered
between the laying of the first and the laying of the second pipeline. After
the second pipeline was laid negotiations took place with that family with
a view to registering a servitude over the property in respect of the
pipelines. Before those negotiations came to a satisfactory fruition the

family sold the property to the respondent, Big Cedar Trading 22 (Pty)
Ltd (Big Cedar). It became the registered owner of the property on
20 June 2003.

[2] Although the pipelines were in existence at the time Big Cedar
acquired the property the evidence is that it was unaware of them. On
4 March 2004 attorneys acting for Rand Water wrote to Big Cedar
informing them of the existence of the pipelines and suggesting that a
servitude be passed over the property in accordance with Rand Water’s
standard terms and conditions. All endeavours thereafter to register a
servitude foundered on the inability of the parties to agree on the amount
of any compensation payable by Rand Water to Big Cedar.

[3] On 28 October 2009 Big Cedar launched an action against Rand
Water advancing two claims. Counsel described the first claim as a
vindicatory claim. Big Cedar’s contention was that the pipelines were
constructed, installed and were being used by Rand Water without the
consent or permission of Big Cedar and without any servitude or other
limited right being registered and/or endorsed in the deed of transfer of
the property. The pleadings go on to allege that Rand Water refused to
remove the pipelines and thereby prevented Big Cedar from having the
unhindered enjoyment of its property. On that basis an order was sought
that Rand Water remove the pipelines, alternatively that it register a
servitude in respect of that portion of the plaintiff’s property, or take
transfer of that land against payment of the amount of R6.6 million.

[4] The second claim was advanced on the basis that the presence of
the pipelines constituted an infringement of Big Cedar’s fundamental
right to property. Rand Water was entitled either to expropriate the

relevant portion of the property or expropriate a servitude in respect
thereof, against the payment of compensation, but had failed to do so. Big
Cedar accordingly alleged that its rights had been infringed, and
continued to be infringed, as a result of which Rand Water was
unjustifiably enriched and benefited at its expense. On that basis it sought
an order for payment of a reasonable rental, alternatively compensation,
in an amount of R38 500 per month. In the further alternative it sought
payment of that amount by way of constitutional damages.

[5] In the high court Tsoka J upheld the first claim, on the alternative
basis, but dismissed the second claim. He ordered Rand Water to register
a servitude over the property at its own expense on its usual terms and
conditions and to pay Big Cedar R32 804 000 as fair, just and equitable
compensation for the servitude. He also ordered that Rand Water pay the
costs of the action on the scale as between attorney and client. The appeal
is with his leave. There is a cross-appeal by Big Cedar against his refusal
to order the removal of the pipelines and his rejection of the claim for
constitutional damages.

Legal background
[6] Rand Water was originally constituted under the Rand Water
Board Incorporation Ordinance, 32 of 1903 (Transvaal). That statute was
from time to time amended by subsequent ordinances and, from 1914,
statutes of the national parliament. These were consolidated in the Rand
Water Board Statutes (Private) Act 17 of 1950 (the Act). The powers of
the Board were set out in s 24 of the Act and where relevant read as
follows:

‘In addition to the powers vested in the Board by other sections of this Act, the Board
shall have the right to supply water within the limits of supply and for that purpose
may, whether within or without the limits of supply–
(g)
Purchase, lease or exchange voluntarily any land or rights therein or in
connection therewith;
(h)
Acquire by compulsory purchase any land within the Republic or rights
therein or in connection therewith (other than water rights) reasonably necessary for
carrying out and developing any of the undertakings transferred to the Board under
the Ordinance of 1904 and the rights to water secured to the Board by the Vaal River
Development Scheme Act, 1936 (Act 38 of 1934), and in the amendment thereof;
…
(j)
Lay or carry through, over, on or across any land, public or private, and any
public road, public place or outspan, within the Republic, and from time to time repair
and maintain any pipes for the supply of water with any necessary valves, cocks,
meters or other accessories in connection with the same, and enter upon any such
land, road or place for such purpose as aforesaid: Provided that–
(i)
At least seven clear days’ notice, except in the case of urgent repairs, shall be
given to the authority under whose management or control the said public land or road
may be, or to the owner or occupier of any private land or road, before making any
such entry as aforesaid;
(ii)
On the completion of such works the Board shall forthwith restore the surface
of such land, road or other place to the same condition as near as may be as it was in
before the commencement of such works, and in executing the same the Board shall
do as little damage as may be to such land, road or other place and shall make full
compensation for all damage done by it …
(iii)
All proper and necessary precautions shall be taken to prevent injury to the
persons or property of all persons using or being upon such land, road or place.’

[7] Shortly after H29 had been laid on the property, the Water Services
Act 108 of 1977 repealed the Act with effect from 31 December 1977. It
contained provisions directed at the transition of various water boards,
including Rand Water, from the former statutory regime to the new
regime under the Water Services Act. They were to continue to exist and

were deemed to be water boards constituted under the Water Services
Act. The key provisions were contained in s 84(4) and (6) of the latter
Act reading as follows:
‘(4)  All existing rights and obligations of those water boards remain in force after the
commencement of this Act.
…
(6)  Anything done before the commencement of this Act by an organisation
contemplated in subsection (2) and any regulation made or condition set under or in
terms of any law repealed by subsection (1) remains valid and is deemed to have been
done, made or set under or in terms of the corresponding provision of this Act if—
(a)
it is capable of being done, made or set under or in terms of this Act; and
(b)
it is not in conflict with the main objects of this Act as set out in section 2.’1

[8] The effect of s 84(6) is that, if laying the two pipelines, H16 and
H29 was lawful when that was done, then it remained lawful after the
Water Services Act came into operation, provided that this was
something that could be done in terms of the later Act. There can be no
doubt that Rand Water still had the power to lay pipelines pursuant to its
obligation to supply water services to water services institutions in terms
of s 29 of the Water Services Act. While the procedures for exercising
that power may now be different, and may require it to expropriate
servitutal rights over the affected property in terms of s 81 of the Water
Services Act, that does not alter the fact that Rand Water is entitled to do
under the Water Services Act what it was entitled to do in 1971 and 1997
under the Act. Section 84(6) serves to preserve the validity of anything
done under the repealed legislation that ‘is capable of being done’ under
the present legislation. In this case what was done under the Act was that

1 There are clear similarities between these provisions and those contained in s 12 of the Interpretation
Act 33 of 1957, but as these are special provisions they would ordinarily exclude the operation of the
general provisions in accordance with the maxim generalibus non specialibus derogant.

two pipelines were laid and that is something that can unquestionably be
done under the current statute. The fact that the manner in which it must
now be done has changed does not affect the position. Provided Rand
Water’s original actions were lawful their validity is preserved by s 84(6).
That is reinforced by s 79(1) of the Water Services Act, which protects its
ownership of the two pipelines.

[9] There was some debate over the impact of s 84(4) and whether it
preserved the right of Rand Water under s 24(j) of the Act from time to
time to repair and maintain the pipelines and their appurtenances. It is
unnecessary to resolve this because Rand Water has, in any event, the
right to do that in terms of s 80(1)(b) of the Water Services Act, on
reasonable notice to the owner of the land on which the pipelines are
situated.

[10] Against that background the key issue is whether Rand Water acted
lawfully in laying the two pipelines in the first place. As counsel for Rand
Water expressed the matter, once the pipelines were lawfully upon the
property, the owner at the time and all subsequent owners were obliged to
tolerate their presence on the property. Counsel for Big Cedar very fairly
accepted this proposition saying that ‘if the pipes are lawfully there, I
must go home’.

Were the pipelines lawfully laid?
[11] Rand Water’s contention is that the laying of the pipeline was
lawful in terms of s 24(j) of the Act. There was no dispute that this
section empowered Rand Water to lay both pipelines. There could hardly
be any dispute over that in the face of its wording, which specifically said
that Rand Water was entitled to ‘lay or carry through, over, on or across

any land’ pipes for the supply of water. Big Cedar’s attack on the
lawfulness of Rand Water’s conduct in laying the pipes necessarily lay
elsewhere.

[12] The argument advanced on behalf of Big Cedar flowed from the
provision in s 24(j)(i) that, before entering upon property for the purpose
of laying a pipeline, Rand Water was obliged to give the owner of the
property at least seven clear days’ notice of its intentions. It submitted
that the evidence showed that no such notice had been given and
therefore that the actions of Rand Water had from the outset been
unlawful. Accordingly, so the argument ran, Rand Water could not rely
on s 24(j) to justify its incursion into and laying of pipes on the property.

[13] I am prepared to accept that the evidence at the trial did not
establish Rand Water’s compliance with this requirement prior to its
laying each of the pipelines. However, for the reasons that follow, one
procedural and one substantive, I do not think that its assumed failure to
comply with this requirement rendered its actions in laying the pipelines
unlawful and unauthorised by s 24(j).

[14]  The procedural reason is simply that this case was not pleaded.
The case Rand Water faced on the pleadings was that it had placed the
pipelines on the property and used them for its own purposes without the
consent or permission of Big Cedar and without any servitude or other
limited real right being registered over the property. In the second claim it
was said that this infringed Big Cedar’s rights to the exclusive use of its
property.

[15] In its plea Rand Water responded to these allegations by saying
that:
‘In laying the aforementioned pipelines the First Defendant2 exercised its pipe-laying
powers in terms of section 24(j) of the Rand Water Board Statutes (Private) Act 17 of
1950 … after the required notice had been given to the owners of the property at the
relevant times.’
Rand Water went on to plead that it was therefore entitled to keep, repair
and maintain the pipelines and to enter upon Big Cedar’s property for
such purposes. In response to the allegation that it lacked a servitude in
order to do this, Rand Water pleaded that no such servitude was required
to enable it to exercise its rights and obligations in terms of its primary
objective. It dealt with the repeal of the Act by relying upon ss 84(2) and
(4) of the Water Services Act.

[16] There was no replication to this plea. Counsel for Big Cedar
contended that the effect of this was to place in issue the allegation that
due notice had been given and that nothing more was required of it. I do
not agree. The plea was directed at the allegation that, in the absence of a
registered servitude or other real right in property, the presence of the
pipelines on the property was without the consent or permission of Big
Cedar and interfered with its use and enjoyment of the property. The
answer was simply that there was no need for a registered servitude or
similar real right because the pipelines had been laid in terms of Rand
Water’s powers under s 24(j) of the Act. The allegation that notice had
been given to the owners added nothing to the validity of the plea and
amounted to a plus petitio. That can readily be tested by asking whether

2 The Minister of Water Affairs and Forestry was cited as a nominal second defendant but played no
part in the litigation.

the plea would have been excipiable in the absence of such an allegation.
The answer is clearly that it would not.

[17] Uniform rule 25(2) says that no replication is necessary which
would be a mere joinder of issue or bare denial of allegations in the
previous pleading. But if Big Cedar wished to attack the plea, not by
challenging the existence of the power claimed by Rand Water, but by
contending that it had not in truth purported to act in terms of that power
in constructing the pipelines, or by challenging the validity of the exercise
of that power on the grounds of a failure to comply with the statutory
requisites for its exercise, it needed to replicate and identify that as an
issue in the litigation. Such a case would not involve a bare denial or
joinder of issue. Big Cedar did not replicate as it needed to do. Had it
done so then there can be little doubt that it would have attracted a
rejoinder from Rand Water, either that the then owners had in fact had
knowledge of the intention to lay the pipeline and consented thereto; or
that they had subsequently acquiesced in its presence and thereby waived
any right to object; or that in terms of the delay rule3 any reasonable
period for challenging the validity of the exercise of the pipe-laying
power by way of judicial review had passed long before Big Cedar
became owner of the property. No doubt other possibilities might have
emerged. What is clear is that, by not raising this point as it should have
by way of a replication, Big Cedar failed to alert Rand Water to the issue
and prevented it from responding properly to it.

3 Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 39C-D;
Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie en ń Ander 1986 (2) SA
57 (A) at 86D-E; Oudekraal Estates (Pty) Ltd v City of Cape Town [2009] ZASCA 85; 2010 (1) SA
333 (SCA) paras 33 and 50-51.

[18] The confusion in regard to this issue was compounded by counsel
for Big Cedar saying in his opening address to the trial court that:
‘We emphasise firstly that this is not the issue whether the Rand Water Board acted
lawfully in 1971 and 1972, and again in 1997. This case is concerned with the
question whether today, despite the advent of a new Constitutional dispensation, and
despite developments in the governing legislation, Rand Water currently enjoys an
ongoing statutory authorisation which justifies it to have these two underground
pipelines through the land of another person without a servitude in respect of them.’
A more emphatic disavowal of any intention to challenge the lawfulness
of Rand Water’s conduct in laying the pipelines would be hard to find.

[19] It is true that, shortly after this, counsel went on to say that the first
factual issue was whether the Board acted lawfully in 1971 and 1997
when it laid these underground pipelines and he said that it had not given
the required notice prior to its doing so. He concluded by saying that on
its own documents Rand Water had never really acted in terms of s 24(j)
but had acted ultra vires its provisions. This conclusion would, he said,
cause all the other legal issues to go away.

[20] To quote Holmes J, in another context,4 what is the court to do
about this drollery? Big Cedar started by telling the judge that the
lawfulness of Rand Water’s conduct in laying the pipelines was not in
issue and in the next breath contended that it acted ultra vires in doing so.
The answer in my view lies in the purpose of pleadings, which is to
identify for the benefit of the court and the parties the issues in the case
so that they may be fairly addressed and considered. Courts are not slaves
to the pleadings5 but it is essential if parties are to have a fair hearing of

4 Dreyer v Naidoo 1958 (2) SA 628 (N) at 629A, the case of the ambidextrous sheriff.
5 Robinson v Randfontein Estates GM Co Ltd 1925 AD 173 at 198.

their dispute, something that the Constitution guarantees,6 that the issues
in the litigation are adequately defined and canvassed, so that no
prejudice is suffered by either party in consequence of any deficiencies in
the pleadings.7 The court will not be astute to hold that an issue falling
outside the pleadings has been so raised and investigated and parties
should not be encouraged to rely on the court’s readiness at the stage of
argument or on appeal to treat unpleaded issues as having been raised and
fully investigated.8

[21] The point here under discussion ought to have been pleaded and it
was not. The vacillating way in which it was addressed at the trial,
bearing in mind that no oral evidence was led on the point and no cross-
examination was addressed to it, makes it clear that it was not fully
investigated or canvassed. Therefore it was not open to Big Cedar to rely
upon it in the appeal.

[22] The substantive reason for holding that this argument does not
avail Big Cedar is that, on a proper interpretation of s 24(j)(i), a failure to
comply with the notice provision does not render the laying of the
pipeline unlawful. There is nothing in the section itself to say that a
failure to give the required notice will render invalid all actions thereafter
undertaken in terms of the powers granted by the section. The question is
one of interpretation to determine whether non-compliance with the
statutory injunction is to be visited with nullity.9

6 Section 34 of the Constitution guarantees a fair public hearing of justiciable issues before a court or
other independent and impartial tribunal or forum.
7 An informal expansion of the issues is most likely to arise through the parties canvassing fully and
without objection an issue falling outside the pleadings. Shill v Milner 1937 AD 101 at 105.
8 Middleton v Carr 1949 (2) SA 374 (A) at 385-386.
9 Standard Bank v Estate van Rhyn 1925 AD 266 at 274; Sutter v Scheepers 1932 AD 165; Swart v
Smuts 1971 (1) SA 819 (A) at 829C-830C.

[23] The clear purpose of the requirement that notice be given to the
owner of a property before entering upon the property and undertaking
work, is to enable the owner to engage with Rand Water over the impact
that the work of laying the pipeline will have upon the owner’s activities.
It also affords the owner an opportunity to make arrangements to ensure
that its own activities are disturbed as little as possible by the proposed
work upon its property. But the period of notice is short, so that planning
for any extensive work, such as the laying of the two pipelines in this
case, and the decision to undertake that work, would have occurred and
been finalised long before the notification to the owner. That means that
the notice’s purpose was not to enable the owner to dissuade Rand Water
from laying the pipeline, or in any significant degree to cause it to alter its
plans. It was rather to ensure that when workmen come on site to
undertake the laying of the pipeline inconvenience to the owner would be
minimised and the owner would be given an opportunity to, for example,
move stock or goods away from the working area and take other steps to
protect its own property. There is nothing in this to suggest that a failure
to give notice to the owner invalidates the act of laying the pipeline.

[24] It follows that Rand Water acted lawfully in installing the two
pipelines. Further consideration of the appeal must therefore proceed on
that basis. I can however be brief as counsel for Big Cedar conceded that
his case had to stand or fall by the lawfulness of Rand Water’s conduct in
laying the pipelines in the first place. He accepted that if that was lawful
it was a necessary implication of the entitlement to lay the pipelines that
there was also a right for them to remain in place or, as Mr du Plessis SC
for Rand Water put it, an obligation on the original owner and all
subsequent owners to tolerate their presence. That conclusion is

supported by the judgment of Bisset CJ in Fison,10 a case resembling this
one, where the owner of property sought the removal of a water pipeline
constructed by the municipality under statutory powers similar to those in
issue here. It is also supported by the description of similar powers by this
court in SMI Trading11 where it was said that:
‘Coercive powers to enter land, and even to deprive owners of the use of land, for
public purposes is a typical governmental power that is provided for in democracies
such as ours precisely in order to further the public interest.’

[25] The conclusion that Rand Water acted lawfully put paid to the
claim for removal of the pipelines and also disposed of the cross-appeal. I
need only note therefore that I am by no means satisfied that counsel was
correct in describing the basis for the claim for removal of the pipes as a
rei vindicatio, or vindicatory action. A vindicatory action is the means
whereby the owner of property recovers possession of that property from
a third party.12 Rand Water was not in possession of Big Cedar’s property
so that the rei vindicatio was not the appropriate means for asserting its
claim. In a situation such as this it seems to me that the appropriate
remedy is likely to be similar to the remedy available to an owner of
property where there is an encroachment upon that property.13
Alternatively the owner would have a claim for damages under the
Aquilian action as described by this court in Hefer v Van Greuning.14 But
I need say no more as the issue is academic.

10 Fison Albatros Fertilisers (Rhodesia) Ltd v Salisbury Municipality  1931 SR 61.
11 Mobile Telephone Networks (Pty) Ltd v SMI Trading CC 2012 (6) SA 638 (SCA) para 34.
12 Chetty v Naidoo 1974 (3) SA 13 (A) at 20A-D; Hefer v Van Greuning 1979 (4) SA 952 (A)(Hefer) at
959G-H.
13 Rand Waterraad v Bothma en ń Ander 1997 (3) SA 120 (O) at 130F-132H; Trustees, Brian Lackey
Trust v Annandale 2004 (3) SA 281 (C).
14 Hefer supra fn 16

A servitude
[26] Apart from the claim for removal of the pipelines Big Cedar
sought, in the alternative, an order that a servitude be registered over the
property in respect of the two pipelines and that Rand Water pay it R6.6
million as compensation therefor. As mentioned the court below made an
order for the registration of a servitude and in addition ordered that
compensation of R32 804 000 be paid therefor.

[27] Mr du Plessis, who appeared for Rand Water in the appeal but not
at the trial, submitted that both these orders were unsustainable. As to the
servitude he contended that a court may not order registration of a
servitude, because personal servitudes are created by agreement,
legislation or expropriation. For a court to order the registration of a
servitude over property, which would necessarily extend to determining
the extent of the servitude and the conditions attaching thereto, amounts
to making a contract for the parties that they have not made for
themselves.

[28] This argument strikes me as compelling and the problems attendant
upon an order such as that granted by the trial court are well illustrated by
the facts of the present case. For example the judge appears to have
assumed that the servitutal area would be 3,2804 hectares as reflected on
the survey diagram annexed to the particulars of claim. But that diagram
had been prepared in 1998 when negotiations were taking place between
Rand Water and the family that then owned the property. He ignored the
fact that Big Cedar itself had proposed a servitude covering a somewhat
smaller area and that there had been no agreement on the terms and
conditions of the servitude. Why then should they be Rand Water’s usual
conditions, assuming there to be such? On this point the matter was not

canvassed in evidence and the draft conditions of servitude in the record
reveal that there were some clauses special to this particular property. It is
unnecessary to decide whether there are any circumstances in which a
court may order the registration of a servitude and, if so, on what terms,
but no foundation was laid for such an order in this case.

[29] Counsel for Rand Water rightly pointed out that the exercise of
powers in terms of s 24(j) is a very different matter from exercising rights
in terms of a registered servitude. The reason is that there is an element of
indeterminacy arising from the exercise of a power to enter property and
lay a pipeline that is largely absent from a registered servitude. In the
former case there is scope for dispute as to the extent to which the
property owner may undertake works in the immediate vicinity of the
pipeline. How close to the pipeline may the owner build a building or
install other services, such as electricity cables or sewage pipes?  May the
owner allow vehicles to cross the pipeline or mine under the pipeline?
May the surface be used for agricultural purposes and, if so, what
constraints are to apply? Once a servitude has been registered its terms
will ordinarily dispose of these questions. All of these issues were dealt
with in a draft deed of servitude that was part of the record. And that
provided the explanation for Rand Water’s willingness to offer some
compensation to Big Cedar in return for its agreement to the registration
of a servitude in this case. The compensation was payable in return for
securing certainty in regard to the respective rights of the parties.

[30] Recognition of the distinction between the outcome of the exercise
of the statutory power and the registration of a servitude explains why the
allegation that Rand Water was acting without a registered servitude or a
real right to construct the pipeline was misconceived. Accepting, as

counsel for Rand Water was prepared to do, that Rand Water was entitled
to exercise a power of expropriation in order to secure servitutal rights in
relation to the pipeline, there was nothing in the Act that required it to do
so before constructing the pipeline. Its statutory right was different from
any right that it would acquire from a registered servitude.

[31] The fact that the exercise of the statutory power did not constitute a
servitude meant that the rule that an unregistered servitude does not bind
a subsequent purchaser without knowledge15 had no application. It is also
the answer to the contentions based on the unreported judgment in Rotek
Industries v Rand Water Board.16 There are curious features of that
judgment. In para 38 the judge correctly held that the powers granted to
Rand Water in terms of s 24(j) could be exercised without any obligation,
either in conjunction with the exercise of that power or after it had been
exercised, to expropriate a servitude. Her conclusion was that there could
be no doubt about the Legislature’s intentions in that regard. But then she
went on to say that whilst this was clear as against the owner of the
property at the time the pipe was laid ‘it is not so clear in relation to
successors-in-title’.

[32] The substance of the court’s reasoning appears from the following
passage in para 42 of the judgment:
In determining the intention of the Legislature in regard to whether the first
defendant’s rights are enforceable against successors-in-title, there is no doubt in my
mind that the Legislature generously endowed the first defendant with section 24(j)
powers in order to enable it to perform its functions in the most cost-effective way
possible. Furthermore the fact that it is a public body, the intention was to ensure that

15 Grant v Stonestreet 1968 (4) SA 1 (A); and Bowring NO v Vrededorp Properties CC and another
2007 (5) SA 391 (SCA) paras 7 and 8.
16 Rotek Industries (Pty) Ltd v Rand Water Board and Another Case No 99/26709, WLD (unreported).

it would not be fettered with obligations which could become costly and burdensome.
However, it could equally not have been the intention of the legislature that this
would be at the expense of the innocent successor-in-title who unwittingly purchases
land not knowing that the value is diminished, that his ability to use it effectively may
be fettered with the informal servitude and which potentially represents a dangerous
situation as he is unaware of the pipes and where it may be located. In balancing the
rights of the first defendant and that of the successor-in-title, I cannot find that these
section 24(j) powers are enforceable against successors-in-title. In effect the taking of
th land without compensation, while permissible in certain instances, cannot be said to
be justified in the present circumstances.’

[33] The logic of this analysis escapes me. I fail to see why the
legislature would have been content to allow Rand Water to enter private
property and lay pipelines without any obligation to obtain a servitude or
pay compensation to the owner, but would have shown such tender
solicitude to successors-in-title who may only have come on the scene
many years later. Take the present case. Rand Water laid H16 in 1971
and 1972. The pipeline was in place for 42 years before Big Cedar
acquired the property. On the judge’s analysis the family who owned it
originally would have had to tolerate its presence for all of those 42 years
with no right to compensation, but Big Cedar would have been entitled to
compensation as soon as it acquired the property. That is an absurd
construction of the statute and in my view it was clearly incorrect.
Accordingly the judgment in Rotek Industries (Pty) Ltd v Rand Water
Board is overruled.

Compensation
[34] Counsel for Big Cedar did not press any argument in favour of the
pleaded claim for constitutional damages. That was wise. Such a claim
would need to rest on the provisions of s 25 of the Constitution

guaranteeing the right to property. Its operation is triggered either by an
expropriation or by a deprivation of property. Those could only have
occurred when the pipelines were constructed. In the case of H16 that
was prior to the Constitution coming into force so that could not give rise
to a constitutionally based claim. In the case of H29 any deprivation of
property occurred before Big Cedar became owner of the property.

[35] That fact is important because counsel was unable to give any
answer to the question of what would happen to Big Cedar’s claim if the
previous owners had received compensation from Rand Water when the
two pipelines were constructed. It seems inconceivable that so long as no
servitude was registered each successive owner would have a claim for
compensation. The question illustrates that if there had been any
deprivation of property it occurred prior to Big Cedar becoming owner of
the property. It also illustrated the fact that if Big Cedar had any claim
arising from its ignorance of the presence of the pipelines that claim
would have lain against the previous owners rather than Rand Water.17

[36] It needs to be noted that Big Cedar did not seek to support the trial
court’s order insofar as compensation was concerned. Mr du Plessis SC
was correct when he said at the outset that it was insupportable on any
basis. The judge took the area of the servitude as proposed in 1998 and
multiplied it by R1 000 a square metre on the basis that this was what
Rand Water paid for a servitude over another property in the same
general area. There was no evidence that the two properties were
comparable and the person who prepared the valuation on which that

17 Glaston House (Pty) Ltd v INAG (Pty) Ltd 1977 (2) SA 846 (A). See also Dibley v Furter 1951 (4)
SA 73 (C).

figure had been based did not give evidence.18 Big Cedar’s own valuer
said in evidence that he could not support this figure on any basis. The
award was plainly untenable and had the appeal failed we would have had
to enter upon an extremely complex enquiry in regard to the assessment
of compensation.

Costs
[37] The trial court awarded attorney and client costs against Rand
Water. That order will obviously be overturned in the light of the
outcome of the appeal. But it is appropriate to say that the strictures
expressed by the trial judge in regard to Rand Water’s conduct, and his
finding that its reliance on s 24(j) of the Act ‘was far from the truth’,
because it knew that there was no formal servitude over the property, was
entirely unjustified. So was his attack on Rand Water’s bona fides. Such
findings are never to be made lightly and they should not have been made
in this case.

Result
[38] The appeal must succeed and the following order is made:
(a) The appeal is upheld with costs, such costs to include those
consequent upon the employment of two counsel.
(b) The order of the court below is amended to read:
‘The plaintiff’s claim is dismissed with costs.’

18 The judge erroneously said that this value was in accordance with Rand Water’s own expert
evidence.

M J D WALLIS
JUDGE OF APPEAL

Appearances
For appellant:
S J du Plessis SC (with him I M Lindeque)
Instructed by:
Breytenbach Mostert Skosana Inc, Pretoria

Hill McHardy & Herbst, Bloemfontein.
For respondent:
M M Oosthuizen SC (with him J Rust)

Instructed by:
Rorich Wolmarans & Luderitz, Pretoria
Symington & De Kok, Bloemfontein.
Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
25 November 2016
Status:
Immediate
Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.
Rand Water Board v Big Cedar Trading 22 (Pty) Ltd
The SCA today upheld an appeal by the Rand Water Board against
a judgment of the Gauteng Division, Pretoria of the High Court in which
it had ordered Rand Water to register a servitude over land owned by Big
Cedar and pay compensation to Big Cedar in an amount of nearly
R33 million.
The claim arose from the laying of two pipelines, the one in 1971
and 1972 and the other in 1997 over agricultural land in the vicinity of
Tshwane. The pipelines carried the water supply to large populated areas
adjacent to Tshwane. At the time the pipelines were laid various members
of one family owned the land. They sold the land to Big Cedar in 1993.
Before that negotiations had been held with the family to register a
servitude over the property in respect of the pipelines but these had not
borne fruit before the sale. After the sale Rand Water entered into
negotiations with Big Cedar to register a servitude but these broke down
over the issue of compensation.
Big Cedar sued for the removal of the pipelines, or alternatively the
registration of a servitude and the payment of compensation, which it
fixed at R6.6 Million. The primary issue between the parties was whether

the laying of the pipelines had been lawful at the time that this occurred.
Rand Water relied on the provisions of s 24(j) of the Rand Water Board
Statutes (Private) Act 1950, which authorised it to enter upn privately
owned land for the purpose of laying pipelines. Big Cedar recognised that
there was such a power, but argued that it had not been validly exercised
because there was no proof that a notice required by the section had been
given to the owners before they entered upon the property to lay the
pipelines.
The SCA rejected this argument on two grounds. First the
pleadings had not raised the issue of the validity of the exercise of the
power and it was unfair to Rand Water to permit Big Cedar to rely on a
point neither raised nor canvassed at the trial. Second and in any event it
held that non-compliance would not render the exercise of the power
invalid because on a proper interpretation of the section that was not its
purpose. The laying of the pipelines was accordingly lawful and the
statute did not require the registration of a servitude in order to preserve
its validity. Nor did it provide for the payment of compensation but even
if it had that compensation would have been payable to the family who
owned the property at the time the pipelines were laid. If Big Cedar had a
claim it was against the sellers who had not disclosed the existence of the
pipeline at the time of the sale.
The SCA also pointed out that there was no evidence to support the
assessment of compensation by the high court. The appeal was upheld
with costs and the order of the high court altered to one dismissing Big
Cedar’s claim with costs.