THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case no:
199/2002

In the matter between:

RAND WATER BOARD
Appellant

and

ROTEK INDUSTRIES (PTY) LTD
Respondent

_______________________________________________________

Coram:
Vivier ADP, Olivier, Cameron, Navsa and Conradie JJA

Date of hearing: 13 March 2003

Date of delivery: 26 March 2003

Summary:
Application of section 21A of the Supreme Court Act 59 of 1959
growing misperception that there has been a relaxation of the
fundamental principle that courts will not make determinations
which will have no practical effect.

_______________________________________________________

JUDGMENT
_______________________________________________________

NAVSA JA:
[1] On 13 March 2003 this appeal was heard and dismissed with
costs by this Court in terms of section 21A (1) of the Supreme Court
Act 59 of 1959 ('the SC Act'). Upon issuing the order it was indicated
that reasons would follow. These are the reasons.
[2] The background facts are the following. The Respondent
company instituted action in the Witwatersrand Local Division of the
High Court against the Appellant ('the Board'), a statutory public
water authority which at all material times exercised its authority in
terms of the now repealed Rand Water Board Statutes (Private) Act
17 of 1950 ('the Act'), seeking an order directing the Board to remove
all pipelines belonging to it from the respondent’s land situated in
Rosherville, Gauteng.
[3] Sooka AJ was called upon to adjudicate the matter in the form
of a stated case and was required to answer two questions. The first
was whether section 24(j) of the Act, which on the face of it gave the
Board expansive powers in respect of laying water reticulation pipes
on private land, could be exercised on its own or whether it had to be
read in conjunction with the powers to expropriate a servitude for

pipeline purposes in terms of section 24(h). Put differently: Could the
Board lay pipelines on private land without first acquiring a servitude?
[4] The second question was:
'Does section 24(j) under the circumstances of the present case (i.e the
powers were duly exercised, the pipes were laid and were, and are, used for an
authorized purpose) confer upon the Board a power, as defined in the sub-
section, against all subsequent owners including the plaintiff, without any
necessity for transfer or registration?'
[5] I interpose to state that of the extensive network of five
pipelines installed over many thousand hectares of the respondent’s
land, four were installed before the respondent acquired ownership.
[6] The Court below heard argument on 4 September 2000 and
delivered judgment on 15 June 2001. The learned judge answered
the first question in favour of the Board but held that the powers
conferred in terms of section 24(j) of the Act were not enforceable
against successors-in-title and issued an order that the Board take
such steps as are necessary in terms of section 81 of the Water
Services Act 108 of 1997 ('the WSA') within a period of one year to
acquire by expropriation such land or rights therein as may be
reasonably necessary to maintain the relevant pipes on the
respondent’s property. The Board was ordered to pay the

respondent's costs. (The WSA repealed the Act but in section 84
preserved the former statutory powers of water authorities like the
Board. The WSA and the National Water Act 36 of 1998 now regulate
the provision of water services in the Republic).
[7] On 21 March 2001, before judgment was delivered in the Court
below, the Board served a notice of expropriation on the respondent
in terms of the provisions of the WSA. On 8 November 2001, after
judgment, the parties reached an agreement recorded in a notarial
deed of servitude in terms of which the Board, against payment of the
agreed sum of R942 430-00, acquired 'the rights in perpetuity to
convey and transmit water over the property by means of pipelines
already laid and which may hereafter be laid'. The question of costs
of the litigation in the Court below was not settled. The rights of the
Board as recorded in the deed are extensive.
[8] The Board previously in 1994 adopted a policy that over and
above exercising its powers in terms of section 24(j) of the Act it
would prospectively endeavour to register servitudes over private
land entitling it to install and maintain pipelines.
[9] Notwithstanding the agreement reached between the parties
and in the face of its policy of registering servitudes the Board

persisted in appealing against the judgment by Sooka AJ and agreed
with the respondent, in terms of Rule 8(8) of the rules of this Court, to
submit the second question posed in the Court below as the only one
to be addressed by this Court.
[10] After heads of argument on the merits were filed in this Court
the parties were requested to prepare argument on the question in
limine, whether the appeal was not liable to be dismissed in terms of
section 21A of the SC Act, the relevant subsections of which read as
follows:
'(1) When at the hearing of any civil appeal to the Appellate Division or any
Provincial or Local Division of the Supreme Court the issues are of such a nature
that the judgment or order sought will have no practical effect or result, the
appeal may be dismissed on this ground alone.
. . .
(3) Save under exceptional circumstances, the question whether the judgment or
order would have no practical effect or result, is to be determined without
reference to consideration of costs’.
[11] There are numerous pronouncements of this Court on the
application of this section.

[12] In Premier, Mpumalanga, en 'n Ander v Groblersdal Stadsraad
1998 (2) SA 1136 (SCA) this Court dealt with the purpose of the
section.
At 1141D Olivier JA said the following:
'Die artikel is, myns insiens, daarop gerig om die drukkende werkslas op
Howe van appèl, insluitende en miskien veral hierdie Hof, te verlig. Dit breek weg
van die destydse vae begrippe soos ‘abstrak’, ‘akademies’ of ‘hipoteties’, as
maatstawwe vir die uitoefening van 'n Hof van appèl se bevoegdheid om 'n appèl
nie aan te hoor nie. Dit stel nou 'n direkte en positiewe toets: sal die uitspraak of
bevel 'n praktiese uitwerking of gevolg hê? Gesien die doel en die duidelike
betekenis van hierdie formulering, is die vraag of die uitspraak in die geding voor
die Hof 'n praktiese uitwerking of gevolg het en nie of dit vir 'n hipotetiese
toekomstige geding van belang mag wees nie.’
The appeal was dismissed in terms of section 21A (1) of the SC Act.
[13] In Coin Security Group (Pty) Ltd v SA National Union for
Security Officers 2001 (2) SA 872 (SCA) the Groblersdal Stadsraaad
case, above, was referred to and at 875A the following appears:
'As is there stated the section is a reformulation of principles previously
adopted in our Courts in relation to appeals involving what were called abstract,
academic or hypothetical questions. The principle is one of long standing. In the
case of Geldenhuys and Neethling v Beuthin 1918 AD 426 at 441 it was said as
follows by Innes CJ:

"After all, courts of law exist for the settlement of concrete controversies and
actual infringements of rights, not to pronounce upon abstract questions, or to
advise upon differing contentions, however important." '
[14] In the Coin Security case, above, counsel for the appellant
sought, without success, to rely on Natal Rugby Union v Gould 1999
(1) SA 432 (SCA). In the Coin Security case this Court said the
following at 875 G:
'. . . [E]very case has to be decided on its own facts. It follows that efforts
to compare or equate facts of one case to those of another are unlikely to be of
assistance. The section confers a discretion on this Court. President, Ordinary
Court Martial, and Others v Freedom of Expression Institute and Others 1999 (4)
SA 682 (CC) para [13] at 687. In the light of this fact a comparison of the type
urged upon us is not appropriate.'
[15] This Court in the Coin Security case stated emphatically (at 875
G-I) that the Gould case on the facts did not reveal a different
approach to that adopted in the Groblersdal Stadsraad case, above.
In the Gould case it was considered that the disturbing divisions
between rugby union members and the uncertainty concerning their
constitution and the manner in which their affairs were to be regulated
were such that a determination of the appeal would undoubtedly have
a practical effect.

[16] In Western Cape Education Department and Another v George
1998 (3) SA 77 (SCA) Howie JA stated the following at 83 E-F:
'I shall assume, without deciding, that the practical effect or result referred
to in s 21 is not restricted to the position inter partes and that the expression is
wide enough to include a practical effect or result in some other respect.'
[17] In the George case, above, this Court dismissed the appeal in
terms of section 21A of the SC Act. In doing so it dealt with the
argument that a determination of the question posed would serve as
a practical guideline for the solution of similar legal questions in
future. Howie JA considered that the legislation in question had been
repealed by a statute that restructured labour relations and that the
position would not be comparable under the new statute. In the last
paragraph of the case the warning in the Groblersdal Stadsraad case,
above, namely, that practitioners keep the provision of section 21A in
mind not only at the stage of an application for leave to appeal but
also thereafter, was reiterated.
[18] In Port Elizabeth Municipality v Smit 2002 (4) SA 241 (SCA)
Brand JA considered the following dictum by Lord Slynn of Hadley in
R v Secretary of State for the Home Department, Ex Parte Salem

[1999] 2 WLR 483 (HL) at 487H ([1999] 2 All ER 42 at 47c):
'. . . I accept . . . that in a cause where there is an issue involving a public
authority as to a question of public law, your Lordships have a discretion to hear
the appeal, even if by the time the appeal reaches the House there is no longer a
lis to be decided which will directly affect the rights and obligations of the parties
inter se.'
[19] In the Smit matter there was on appeal no longer any dispute or
lis between the parties. This Court assumed without deciding that
where the public interest is affected it has a discretion to entertain the
appeal. On the facts of that case the appeal was nevertheless
dismissed in terms of section 21A of the SC Act.
[20] The following passage by Lord Slynn of Hadley in the Salem
case, above, should, in my view, not be lost sight of in a debate about
the application of section 21A when a public law issue presents itself.
At 47d-f (All ER) the following appears:
'The discretion to hear disputes, even in the area of public law, must,
however, be exercised with caution and appeals which are academic between
the parties should not be heard unless there is a good reason in the public
interest for doing so, as for example (but only by way of example) when a
discrete point of statutory construction arises which does not involve detailed
consideration of facts and where a large number of similar cases exist or are

anticipated so that the issue will most likely need to be resolved in the near
future.'
[21] Counsel for the Board relied on a passage from The Merak: S
Seamelody Enterprises SA v Bulktrans (Europe) Corporation 2002 (4)
SA 273 (A) at para 4 in an attempt to persuade us to hear the merits
of the appeal. That passage indicates that the questions of law at
issue were likely to arise frequently and the facts of that case are
therefore entirely distinguishable from the facts of the present case.
[22] Against the background of the decisions set out in the
preceding paragraphs I return to the facts of the present case.
Counsel for the Board submitted that the issue we are called upon to
decide was still alive between the parties. I do not agree. It is clear
that the agreement set out in the servitude has the effect that the
plaintiff is unable to obtain the relief sought in the present action. The
legality of the presence of the pipeline on the land is no longer in
issue. There is no longer any dispute between the parties and the
issue we are called upon to decide can have no practical effect on the
erstwhile dispute between the parties.
[23] Even assuming without deciding that the meaning of ‘practical
effect’ in section 21A is wide enough to cover a practical effect

beyond the parties to the dispute, there is nothing on record to
indicate that that there are pending or expected disputes that may
benefit from a determination of the question posed in terms of rule
8(8) of the Rules of this Court. Counsel for the Board was unable to
state from the bar that there were cases pending or expected.
Furthermore, in the light of the Board’s policy of seeking registration
of servitudes as a matter of course, it is difficult to see what practical
effect a determination might have.
[24] We were urged by counsel for the Board to take into account
that the Board in fulfilling its public function may come across
obstructive landowners who in negotiations in relation to the
acquisition of servitudes may demand outrageous sums for the right
to install and maintain pipelines. The answer is that in such an
instance, apart from litigation, there is no reason why the Board might
not resort to the expropriation powers it has in terms of the WSA or
any other legislation.
[25] The WSA came into operation on 19 December 1997.
Prospectively, the provisions of the WSA will come into play. The
Board served the expropriation notices referred to earlier in this
judgment on the respondent in terms of the provisions of the WSA.

We have not been called upon to determine the Board’s powers in
terms of any of the provisions of the WSA. Instead we have been
asked to deal with the provisions of a now repealed Act without any
indication that the Board’s powers preserved by the WSA might be
called into question in any single case in the future.
[26] The present case is a good example of this Court’s experience
in the recent past, including unreported cases, that there is a growing
misperception that there has been a relaxation or dilution of the
fundamental principle spelt out in the Groblersdal Stadsraad case,
above, namely that courts will not make determinations that will have
no practical effect.
[27] Returning to the facts of the present case it is abundantly clear
that no practical effect would be achieved by a determination of the
question posed. For these reasons the appeal was dismissed with
costs.

_________________
MS NAVSA
JUDGE OF APPEAL
CONCUR:

VIVIER
ADP
OLIVIER
JA
CAMERON JA
CONRADIE JA