THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
JUDGMENT

Case No:  338/09

In the matter between:

JACOBUS PETRUS CHRISTIAAN MOSTERT SNR             1st APPELLANT
JACOBUS PETRUS CHRISTIAAN MOSTERT JNR             2nd APPELLANT

V

THE STATE                                                                               RESPONDENT

Neutral citation:
Mostert v The State (338/2009) [2009] ZASCA 171
(1 December 2009).
Coram:

Navsa, Mthiyane, Heher JJA, Leach et Griesel AJJA
Heard:

4 November 2009
Delivered:

1 December 2009

Summary:    Unauthorized abstraction of water from a river – whether state
limited to prosecution of statutory offences and common law
prosecutions are excluded – effect of s 98 of the National Water
Act of 1998.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: North Gauteng High Court (Basson J and Smith AJ sitting
as court of appeal).

The following order is made:

1.
The appeal against the appellants’ convictions on counts 3 and 4 is
dismissed.
2.
The appeal against the sentence imposed in respect of counts 3 and 4 is
upheld and the sentence altered as set out below.

3.
The respondent’s cross-appeal in regard to count 1 (fraud) is upheld and
the high court’s order upholding the appellants’ appeal against their
conviction on that count is set aside.
4.
The respondent’s cross-appeal in regard to count 2 (theft) is dismissed.
5.
The order of the high court is altered to read as follows:
‘(a) The appeal in respect of the first appellant’s conviction on counts 2,
5, 6 and 7 and the second appellant’s conviction on counts 2, 5 and 6 is
upheld and such convictions and the sentences imposed in respect
thereof are set aside.
(b) The appeal in respect of the appellants’ convictions on counts 1, 3
and 4 is dismissed.
(c) In respect of their conviction on count 1 (fraud) each appellant is
sentenced to a fine of R20 000 or 12 months’ imprisonment, wholly
suspended for four years on condition he is not convicted of fraud
committed during the period of suspension and for which he is sentenced
to imprisonment without the option of a fine.
(d) The appeal against the sentence imposed in respect of counts 3 and
4 is upheld, the sentence is set aside and (both counts being taken
together for purposes of sentence) replaced in the case of each
appellant with a fine of R5 000 or six months’ imprisonment.’

______________________________________________________________

JUDGMENT

LEACH AJA (NAVSA, MTHIYANE, HEHER JJA et GRIESEL AJA concurring)

[1] The two appellants, who are father and son, grow sugarcane in a joint
enterprise on the farm ‘Dadelvlak’1 in the district of Barberton. The farm is
riparian to the Lomati River from which the appellants abstract water to
irrigate their lands. It also falls within the Lomati Irrigation District which was
established on 31 October 1969 under the provisions of s 71(1) of the Water
Act 54 of 1956 (‘the 1956 Act’) and in respect of which the Lomati Irrigation
Board (‘the complainant’) was simultaneously created under s 79(1) of that
Act.2

[2] The functions of the complainant included the exercise of control over
the water in the Lomati River within its area of control and the regulation of the
amount of water abstracted by farmers within its irrigation district. In order to
monitor the quantity of water being abstracted, the complainant required the
farmers to register their pump stations and to have them fitted with a water
flow monitoring system known as a ‘WAMS’.3 The practice was for each
farmer periodically to read the meter on the WAMS and to report the quantity
of water consumed to the complainant. These readings were also verified
from time to time by the complainant’s official, referred to in evidence as the
‘waterfiskaal’4, who made periodic spot-checks on the farms and personally
took readings from the WAMS units.

[3] For these purposes the appellants had registered only a single pump-
station, known as pump-station 46, in respect of Dadelvlak. However, in July

1 The full name is ‘Dadelvlak 506 JU’.
2 Proclamation 286, 1969 published in GG2551 of 31 October 1969.
3 An acronym for ‘Water Administration Monitoring System’.
4 The water bailiff.

2004 the complainant learned that the appellants had constructed a second
pump-station (referred to in evidence as pump-station 46.1) on the farm,
which was not registered and had not been fitted with a WAMS.
Understandably, the complainant suspected the appellants of using pump-
station 46.1 to abstract water from the river which was not being reflected in
their water consumption returns. It was later also discovered that the electrical
wiring leading to the WAMS fitted to pump-station 46 appeared to have been
interfered with in such a way that the pump could be operated without the
water abstracted being recorded.

[4] These discoveries set in train a series of events which in April 2006
culminated in the two appellants being arraigned in the Magistrate’s Court at
Malelane on seven criminal charges. In addition to various charges under the
National Water Act, 36 of 1998 (‘the 1998 Act’), they were also charged with
the common law crimes of fraud and theft. Despite both appellants denying
their guilt, the first appellant was convicted on all counts while the second
appellant was convicted on six of the seven counts. They were then both
sentenced to either pay substantial fines or to undergo imprisonment.

[5] An appeal to the High Court, Pretoria succeeded to the extent that the
appellants’ convictions and sentences on all but two counts were set aside,
including those of fraud and theft, while the sentence imposed on the
remaining two counts, which were taken together for purpose of sentence,
was reduced. With leave of the high court, the appellants now appeal to this
court against their two remaining convictions and their sentence. On the other
hand, the state sought and obtained leave to appeal on points of law against
the high court’s decision in regard to the charges of fraud and theft.

[6] In the light of this background, the charges levied by the state which
have to be considered are the following:
Count 1 – it being alleged that the appellants committed the offence of fraud
by knowingly providing the complainant with false readings of the quantities of
water they had abstracted from the river at pump-station 46 during the period
1998 to 2005 (in the alternative, it was alleged they were guilty of the theft of

the water that had been abstracted through this pump-station but not reflected
in their water consumption returns);
Count 2 – it being alleged that the appellants are guilty of theft in that during
the period 1998 to 2005 they stole an unknown quantity of water which they
had abstracted through pump-station 46.1;
Count 3 – it being alleged that the appellants contravened s 151(1)(e) of the
1998 Act in that they wrongfully, unlawfully, intentionally or negligently
tampered or interfered with the WAMS measuring device fitted to pump-
station 46;
Count 4 – it being alleged that the appellants contravened s 151(1)(j) of the
1998 Act by unlawfully, intentionally or negligently committing an act
detrimentally affecting a water resource by illegally abstracting water from the
Lomati River at both pump-stations 46 and 46.1 during the period 1998 to
2005.

[7] The appellants attacked the validity of all these charges. Not only did
they support the court a quo’s decision that it had not in law been open to the
state to charge them with fraud and theft, but they also contended that the
charges under the 1998 Act could not be brought against them as the
complainant was continuing to operate under the 1956 Act at the material
time, despite the 1998 Act having been brought into operation. In order to
consider these contentions, it is useful to give a brief historical overview of
certain of the laws relating to the use of water.

[8] Water being a scarce and valuable commodity in a country such as
ours which is often wracked by drought, it is hardly surprising that prior to
Union in 1910 the Cape, Natal, Transvaal and Orange Free State had each
passed legislation which differed in terms of effect but controlled the use of
public water for purposes of irrigation. It is unnecessary to detail these
differences in this judgment as the legislation in question was repealed by The
Irrigation and Conservation of Waters Act 8 of 1912 (‘the 1912 Act’). Inter alia,
it created irrigation districts,5 as well as irrigation boards for each such

5 Section 81.

district,6 which were imbued with various powers, including the power to
construct and maintain reservoirs, channels and other irrigation works. They
were also charged with the obligation to obtain and conserve the supply of
water and to arrange for an equitable distribution of any water stored or
diverted by any such works7 and, in order to do so, were empowered to make
bye-laws and rules prescribing ‘the manner of regulating the flow of water and
the distribution from and use of water in the board’s channels and other
works’.8

[9] The 1912 Act was repealed by the 1956 Act. Not only did it retain the
common law distinction between private and public water which had been
recognised in the 1912 Act, but it regulated the use of public water, providing
for it to be used for agricultural, urban or industrial purposes. It vested the use
of public water for agricultural purposes in the owner of land riparian to the
public stream in question.9 It also provided for the creation of irrigation
districts10 as well as an irrigation board for each irrigation district,11 which were
required, inter alia,12
 to protect the sources of the water of any public stream in its irrigation
district,
 to prevent the waste of the water in any public stream, to prevent any
unlawful abstraction or storage of public water,
 to exercise general supervision over all public streams within the
irrigation district,
 to investigate and record the quantity or share of water which every
person having any right and respect of such water was entitled to use,
  to supervise and regulate the distribution and use of the water of all or
any of the public streams within its irrigation district,
  for that purpose, to erect and maintain such devices for measuring and
defining the flow of the water or controlling its diversion, and

6 Section 83.
7 Section 89(2).
8 Section 95(b).
9 Section 9(1).
10 Sections 71 to 77.
11 Section 79.
12 Section 89.

 generally to supervise within the irrigation district the storage, diversion
and use of water in public streams.

[10] The 1956 Act was repealed and replaced by the 1998 Act which
fundamentally reformed South African water law. The common law distinction
between public water and private water was no longer recognised as a basis
for entitlement to the use of water. Instead, under s 2 of the 1998 Act,
government at national level was granted the overall responsibility for and
authority over the country’s water resources and their use. Section 3
recognises national government, acting through the minister13 as the public
trustee of the nation’s water resources, as having the power to regulate the
use, flow and control of all water in the country. Section 4 goes on to
prescribe who is entitled to use water, and the use of water otherwise than as
permitted under the Act is both prohibited and criminalised.14

[11] In addition, the 1998 Act does away with the system of irrigation
districts and their associated irrigation boards and replaces them with a
system of ‘catchment management agencies’ and ‘water user associations’.
The former have as their purpose the delegation of the management of ‘water
resources’ (defined as including ‘water courses, surface water, estuaries or
aquifers’)15 ‘to the regional or catchment level and to involve local
communities’.16 The latter are intended to be ‘in effect co-operative
associations of individual water users who wish to undertake water-related
activities for their mutual benefit’.17 Section 98(4) provides that within six
months of the commencement of the Act an irrigation board established in
terms of any law in force immediately before the 1998 Act came into
operation, is to submit to the minister a proposal to transform the board into a
water user association – which proposal the minister, under s 98(5), may
either accept, with or without amendment, or reject. If the proposal is
accepted, the minister is to gazette a declaration to that effect.

13 Defined as the Minister of Water Affairs and Forestry.
14 Section 151(1)(a) as read with s 151(2).
15 Section 1.
16 See the explanatory note to Chapter 7 of the 1998 Act.
17 See the explanatory note to Chapter 8 of the 1998 Act.

[12] Section 98(2) of the 1998 Act is a ‘sunset clause’. It provides:
‘A board continues to exist until it is declared to be a water user association in terms
of subsection (6) or until it is disestablished in terms of the law by or under which it
was established, which law must, for the purpose of such disestablishment, be
regarded as not having been repealed by this Act.’
In addition, s 98(3) provides that:
‘(a)
the name, area of operation, management, property, rights, liabilities,
obligations, powers and duties of a board remain the same as immediately before the
commencement of this Act;
(b)
this section does not affect the continuity, status, operation or effect of any act
or omission of a board, or of any by-law made by a board, before the commencement
of this Act;
(c)
any person holding office with the board when this Act commences continues
in office for the term of that person’s appointment; and
(d)
if a position becomes vacant prior to the declaration of the board as a water
user association, the board may fill the vacancy according to the procedures laid
down by or under the law which applied to that board immediately before the
commencement of this Act.’

The clear intention of these provisions is that existing water irrigation boards
should continue in operation until they are restructured as water user
associations. (Although strictly speaking it should not be taken into account in
interpreting the Act18 this is confirmed by the explanatory note to chapter 8 of
the Act, into which s 98 falls).

[13] Notwithstanding the six month period prescribed by s 98(4), the
complainant was neither disestablished nor transformed into a water user
association, and was still continuing to operate by virtue of the provisions of
s 98(2) and (3) at the time of the appellants’ trial, some eight years after the
1998 Act had come into operation. How this somewhat surprising state of
affairs came about is, however, neither here nor there and, for present
purposes, it must be accepted that at all times material to the charges brought
against the appellants the complainant had continued to exist and to operate
with the obligations, powers and duties it had enjoyed under the 1956 Act.

18 See s 1(4) of the 1998 Act.

[14] In the light of this, the appellants argued that the charges brought
against them under the 1998 Act were not competent as, so they submitted,
the 1956 Act had continued to be in force in the complainant’s irrigation
district – and it did not create similar statutory offences. In my view, for the
reasons that follow, this cannot be accepted.

[15] While it is so that the complainant had continued to exist and exercise
the functions it had performed under the 1956 Act, this does not mean that the
1956 Act had not been repealed throughout the country, including within its
irrigation district. The complainant’s existence and functions were merely
preserved as a temporary measure to enable it to continue to operate. Had
the legislature intended the 1956 Act not to have been repealed within the
areas of operation of irrigation boards established under that Act when the
1998 Act came into operation, it would have been a simple matter for it to
have said so. It did not do so, and such an intention is not a necessary
inference. Indeed, the provisions of the 1998 Act clearly indicate the contrary.
Thus, for example, a person who enjoyed an existing lawful water use before
the commencement of the 1998 Act, was permitted under the provisions of
s 34 of the latter Act to continue to exercise that use. The explanatory note to
part 3 of chapter 4 of the 1998 Act, into which s 34 falls, gives the following
relatively simple and accurate summation of the provisions of that part of the
chapter:

‘This Part permits the continuation under certain conditions of an existing water use
derived from a law repealed by this Act. An existing lawful water use, with any
conditions attached, is recognised but may continue only to the extent that it is not
limited, prohibited or terminated by this Act. No licence is required to continue with an
existing lawful water use until a responsible authority requires a person claiming such
an entitlement to apply for a licence. If a licence is issued it becomes the source of
authority for the water use. If a licence is not granted the use is no longer
permissible.’

[16] Thus, although an irrigation board might continue to exist and operate
with the various duties and obligations it had under the 1956 Act despite the

coming into operation of the 1998 Act, it does so by reason of the provisions
of the latter which clearly apply within the irrigation district of each such an
irrigation board and regulates the use of water. Accordingly, anyone who
commits an offence envisaged by s 151 of the 1998 Act may be charged
under that Act, even if the offence is committed within the irrigation district of
an irrigation board established under the 1956 Act which continues to exist
and operate by reason of s 98 of the 1998 Act.

[17] It was therefore clearly competent for the state, in counts 3 and 4, to
charge the appellants with offences under s 151 of the 1998 Act. Whether the
evidence establishes their guilt on these counts is another matter, to which I
shall return in due course.

[18] It is convenient at this stage to consider the issue raised in the cross-
appeal, namely, whether it was competent to charge the appellants with the
common law offences of fraud (count 1) and theft (count 2, and as an
alternative on count 1) or whether the state was limited to charging them with
no more than the statutory offences created by the 1998 Act. The cross-
appeal flows from the court quo's finding that the legislature, by
comprehensively regulating the use of water by way of the 1998 Act in which
it created numerous statutory offences, necessarily intended to limit the
prosecution of persons for offences in relation to water and its use to those it
had provided under that Act, and had excluded common law offences the
elements of which overlapped with such statutory offences.

[19] In my view, the court a quo misdirected itself in this regard. The mere
fact that certain conduct might constitute an element of both a common law
offence and a statutory offence is not in itself any reason to find that the
legislature intended only the statutory offence to be capable of prosecution.
There are numerous instances where certain conduct will be an element of
both a common law and statutory offence. An obvious example which springs
to mind is the negligent driving of a motor vehicle. This amounts to a statutory
offence and an essential element of the common law offence of culpable
homicide where it results in a loss of life. But that is no bar to the offender

being charged with culpable homicide and, in the alternative, the statutory
offence of negligent driving. Indeed, this court has recognised that in certain
cases where conduct which amounts to a statutory offence overlaps with the
common law offence, the penalty prescribed for the statutory offence may in
certain circumstances be a useful guide in considering an appropriate
sentence for a conviction of the common law offence.19

[20] I accept that, in principle, the legislature could bar the prosecution of
certain common law offences and restrict the prosecuting authority to bringing
charges solely in respect of statutory offences. But there is no provision in the
1998 Act which specifically debars common-law offences relating to water or
its misuse, nor can such a provision be found by necessary implication, and
the court quo erred in finding that the appellants could not be prosecuted for
common law offences.

[21] While I thus see no reason why a charge of fraud could not be brought
against the appellants, that is not the end of the matter in respect of whether
water pumped out of the Lomati River could be the subject of a charge of
theft, an issue which needs more detailed examination.

[22] Roman law recognised certain things as being res extra patrimonium
which were incapable of being owned, including those things classified as res
communes being ‘things of common enjoyment, available to all living persons
by virtue of their existence’.20 Public water, running in a river or a stream, was
recognised as being res communes and therefore incapable of being
owned.21 These Roman law principles were adopted by Roman–Dutch law
and subsequently recognised in South Africa.22 Indeed, s 6(1) of the 1956 Act
specifically provided that ‘there shall be no right of property in public water
and the control and use thereof shall be regulated as provided in this Act.’

19 Eg R v Sacks 1943 AD 413 at 428 and R v Mzwakala 1957 (4) SA 273 (A) at 279B-C.
20 See eg J A C Thomas Textbook of Roman Law (1976) at 129.
21 Justinian Institutes 2.1.1 and Lawsa (1st re-issue) vol 30 par 358.
22 Lawsa op cit.

[23] As water in a public stream was therefore incapable of being owned, it
was also incapable of being stolen23 and I did not understand the state to
contend otherwise. However, it submitted that the fundamental changes
brought about by the 1998 Act resulted in this no longer being an accurate
reflection of our law. Its argument in this regard was based on the Act having
specifically placed water resources under the trusteeship of national
government as I have already mentioned in para 10 above. But I do not see
how the fact that government now exercises administration and control over
water flowing in a river means it must now be regarded as capable of being
owned and thus capable of being stolen. Effectively the 1998 Act does no
more than place all water within the aegis of state control, which control the
state had in any event exercised over public water before it came into
operation. The legislature created various statutory offences under the 1998
Act and, if it had wished to create the offence of theft of water, it could easily
have done so. It did not. Instead, in s 151(1)(a) it made the use of water other
than as prescribed by the Act an offence.

[24] Accordingly, my prima facie view is that water flowing in a stream or
river (a water resource as envisaged by the 1998 Act) is not capable of being
stolen, so that a riparian owner who abstracts more water from such a water
resource than that to which he or she is legally entitled may commit a
statutory offence under s 151 of the 1998 Act but does not commit the offence
of theft. However, it is not necessary to reach a final decision on this issue as,
even if it had been competent for the state to charge the appellants with theft,
that charge could only have been sustained if the appellants had taken more
water than what they had been entitled to abstract. On appeal, the court a quo
concluded that the evidence in the trial court had failed to establish that to
have been the case, and for that reason the appellants’ conviction for theft
could not stand. The ratio of the decision of the court a quo was based on this
factual finding, not on the point of law that a charge of theft could not be
brought. Its observation to the effect that a charge of theft of water was
inappropriate was no more than a passing comment and was not the

23 J Burchell Principles of Criminal Law 3 ed (2005) at 167.

underlining reason why the conviction of theft was set aside. That being so,
the court a quo erred in granting leave to appeal on a point of law in respect of
the theft charge which could not determine the appellants’ guilt or otherwise
on that charge. And in any event, I agree that the state failed to establish that
the appellants had abstracted more water from the river than that to which
they had been entitled, even if the circumstances were such that their actions
gave rise to a very real suspicion that they had done so. In these
circumstances the cross-appeal in relation to the charge of theft cannot
succeed.

[25] I turn to consider whether the evidence established the appellants’ guilt
on the three remaining counts. It was argued on behalf of the appellants that
the evidence of a state witness, David Maduna, an employee of the
appellants, should be disregarded as he had not been properly sworn in by
the magistrate. The point is debateable but, for purposes of this appeal, I
intend to accept that no account should be had of his evidence. The
remaining witnesses were found by the magistrate to be reliable and the
attack upon their honesty and credibility contained in the appellants’ heads of
argument was not only unjustified and groundless but was, in the main, based
on speculation and matters not raised in evidence. The appellants did not
testify and, in these circumstances, there is no reason not to accept those
factual findings of the trial magistrate, which were also accepted by the court
a quo.

[26] As I have mentioned, the appellants’ farm lies within the irrigation
district of the complainant. The appellants registered a single pump-station
with the complainant which was fitted with a WAMS to measure the amount of
water they abstracted from the Lomati River. In terms of an undertaking they
had given, the appellants periodically passed on the readings to the
complainant. Those readings were verified from time to time by the
waterfiskaal. Despite the complainant having been entitled to make bye-laws,
the scheme appears to have been administered by consent rather than by the
passing of bye-laws or regulations.

[27] In July 2004 the waterfiskaal, Mr du Toit, discovered that the appellants
had built pump station 46.1 on the their farm to which there was no WAMS or
similar system fitted, and were using it to pump water from the Lomati River to
a nearby storage dam on the farm – from which water was led to irrigate
certain lands. This was reported to the complainant whose committee took the
matter up with the appellants and informed them that the pump-station was
illegal and that they were to fit it with a WAMS. They agreed to do so at their
own cost, but it was subsequently ascertained that the flow-meter was
mounted inside the pump-house which was locked, and thus did not comply
with the complainant’s specifications as it was not accessible to the
waterfiskaal.

[28] As a result of certain information received, the complainant also
suspected that the WAMS unit at pump-station 46 had been de-activated so
that the appellants could pump water from the river which would not be
recorded. This led to the complainant obtaining a warrant to carry out an
inspection on the appellants’ farm. Consequently, on 3 March 2005 a qualified
electrical contractor, Mr WJ de Beer, inspected pump-station 46 in the
company of the second appellant. When the second appellant unlocked the
pump-house, De Beer noticed that the pump was running but that the WAMS
was not registering the water flow. The cause of this was found to be that the
electrical wiring leading to the WAMS had been bridged. It is unnecessary to
deal with the technical evidence save to state that it was quite clear that the
electrical circuits had been altered so that the pump could run without the
WAMS system reading the quantity of water being abstracted.

[29] This evidence, unchallenged as it was by the appellants, establishes
that the appellants pumped an unknown quantity of water out of the river at
pump station 46 which was not registered on the WAMS system affixed to that
pump. As the figures recorded by the WAMS were forwarded to the
complainant as being the appellant’s water consumption from the river, the
appellants therefore intentionally brought the complainant under the
impression that they had abstracted less water than they had actually done. It
also prevented the waterfiskaal from verifying the accuracy of the figures that

appellants had submitted. In a nutshell, the appellants deceived the
complainant in regard to the quantity of water they had abstracted from pump
station 46.

[30] The court a quo appears to have found that the misrepresentation
made by the appellants could not be regarded as being unlawful as there was
no statutory obligation on their part to provide correct information. But that
misses the true issue, namely, that the appellants intended to and did in fact
deceive the complainant by forwarding water consumption figures which they
knew were incorrect. The complainant was required to protect the sources of
the water in the river, to prevent any unlawful abstraction of such water, to
exercise general supervision over the river and to recall, supervise and
regulate the use of the water in the river.24 The complainant was thus clearly
prejudiced by the appellants’ misrepresentations as it relied on the accuracy
of the information it received as to the water abstracted from the river in order
to discharge its functions. The essence of fraud is the deception of the victim
by way of misrepresentation causing prejudice or intentional prejudice, and it
matters not that the appellants were not under a statutory obligation to provide
accurate figures. Misrepresentations were clearly made by both appellants,
either in concert or by making common cause with the actions of each other,
and caused either direct or potential prejudice to the complainant.
Consequently, while the appellants cannot be found guilty of theft of the
unknown quantity of water which they abstracted but did not account for to the
complainant, there is no reason why they cannot be found guilty of fraud. I
have no difficulty in concluding that the state established the guilt of both
appellants on count 1.

[31] In relation to count 3, it is alleged by the state that the appellants
contravened s 151(1)(e) of the 1998 Act by having wrongfully and intentionally
tampered or interfered with the WAMS device fitted to pump station 46. That
the device was interfered with by way of a carefully crafted bridging device
being fitted to its electrical system leading is clear. This was done within the

24 See para 9 above.

pump-station which was locked and to which only the appellants had access.
The irresistible inference is that the appellants were directly responsible for
the installation of the bridging device to enable them to run the pump without
the WAMS recording the amount of water being abstracted. The only real
defence to the charge offered by the appellants in the appeal was that they
could not be charged under s 151 of the 1998 Act. But, for the reasons
already given, there is no merit in that defence. Again, I have no difficulty in
concluding that the appellants were correctly convicted on this charge.

[32] The charge against the appellants in to count 4 was that they had
contravened s 151(1)(j) of the 1998 Act by unlawfully abstracting water from
the Lomati River at both pump-stations 46 and 46.1. The essence of an
offence under s 151(1)(g) is an act ‘which detrimentally affects or is likely to
affect a water resource’. It is clear that the appellants pumped quantities of
water from the Lomati River, which is a ‘water resource’ as defined, at both
those pump stations for which they did not account to the complainant. This
would have occurred whenever water was abstracted from pump station 46.1
(which was not fitted with a WAMS) and when the water abstracted from
pump-station 46 was not recorded by its WAMS due to the meter having been
cut out of the electrical system by the unauthorised bridge.

[33] As the complainant was charged with the administration of the water in
the river and obliged to supervise and regulate its use, the appellants’ actions
would clearly either have detrimentally affected the river or have been likely to
have done so. I therefore have no difficulty in finding that the appellants were
correctly convicted on count 4 as well.

[34] I turn now to the question of sentence. At the outset, I shall deal with
count 1 ie the count of fraud. For purposes of sentence, the trial court took
this conviction together with the conviction of theft on count 2 and imposed a
fine of R30 000 or 18 months’ imprisonment wholly suspended for five years
on certain conditions. Of course, the appellants are now to be sentenced
merely for the single count of fraud. Nevertheless, the offence is a severe
one, relating as it does to a scarce natural resource. In these circumstances I

am of the view that it would be appropriate to sentence each appellant to a
fine of R20 000 or 12 months’ imprisonment but to suspend the sentence in its
entirety for five years on condition that he is not convicted of fraud committed
during this period of suspension for which he is sentenced to imprisonment
without the option of a fine.

[35] The court a quo took both counts 3 and 4 together for the purposes of
sentence, and sentenced each appellant to a fine of R5 000 to be paid to the
complainant within 30 days or six months’ imprisonment. Although the
appellants appealed against both the amount they were ordered to pay as
well as the length of the period of imprisonment imposed as an alternative,
they were, if anything, leniently treated and I see no reason to interfere.
However, the condition that the amount of R5 000 be paid to the complainant
is inappropriate. Not only does the complainant possibly not still exist, but
effectively the court imposed a compensatory order in respect of which the
procedures, required by s 152 of the 1998 Act and s 300 of the Criminal
Procedure Act 51 of 1977, were not followed. The parties therefore agreed
that this court should alter the sentence to reflect the amount as a fine
payable to the state.

[36] In the result, I order as follows:

1.
The appeal against the appellants’ convictions on counts 3 and 4 is
dismissed.
2.
The appeal against the sentence imposed in respect counts 3 and 4 is
upheld and the sentence altered as set out below.

3.
The respondent’s cross-appeal in regard to count 1 (fraud) is upheld and
the high court’s order upholding the appellants’ appeal against their
conviction on that count is set aside.
4.
The respondent’s cross-appeal in regard to count 2 (theft) is dismissed.
5.
The order of the high court is altered to read as follows:
‘(a) The appeal in respect of the first appellant’s conviction on counts 2,
5, 6 and 7  and the second appellant’s conviction on counts 2, 5 and 6 is

upheld and such convictions and the sentences imposed in respect
thereof are set aside.
(b) The appeal in respect of the appellants’ convictions on counts 1, 3
and 4 is dismissed.
(c) In respect of their conviction on count 1 (fraud) each appellant is
sentenced to a fine of R20 000 or 12 months’ imprisonment, wholly
suspended for four years on condition he is not convicted of fraud
committed during the period of suspension and for which he is sentenced
to imprisonment without the option of a fine.
(d) The appeal against the sentence imposed in respect of counts 3 and
4 is upheld, the sentence is set aside and (both counts being taken
together for purposes of sentence) replaced in the case of each
appellant with a fine of R5 000 or six months’ imprisonment.’

________________
L E LEACH
ACTING JUDGE OF APPEAL

APPEARANCES:

COUNSEL FOR APPELLANTS:   J Nel
INSTRUCTED BY:
Coert Jordaan Attorneys, Nelspruit
CORRESPONDENT:
Giorgi en Gerber Attorneys, Bloemfontein

COUNSEL FOR RESPONDENT: L Kok
INSTRUCTED BY:

Director of Public Prosecutions, Pretoria
CORRESPONDENT:
Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
1 December 2009

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.

J P C MOSTERT SNR & ANOTHER v THE STATE

The two appellants, farmers who irrigate from the Lomati River, were convicted in
the Magistrate’s Court at Malelane on charges of fraud and theft as well as
various contraventions of the National Water Act 36 of 1998. They appealed to
the High Court, Pretoria. That court held that the state had proved only two
contraventions under Act 36 of 1998 and that it had not been competent for the
state to charge the appellants with fraud and theft as the legislature had intended
to exclude common law offences.

In a further appeal, the Supreme Court of Appeal today ruled that the high court
had erred in regard to this latter issue and that the state had been entitled to
charge the appellants with common law offences. The court found that the
appellants had been guilty of fraud and two of the statutory offences with which
they had been charged that that the state had failed to prove that they had taken
water to which they had not been entitled. The court expressed the view,
however, that in law a person could probably not be guilty of the theft of water out
of a river.