IN
THE SWAZILAND COURT OF APPEAL
HELD
AT MBABANE
CASE
NO.1/93
In
the matter between:
VALLEY
ESTATES (PROPRIETARY)
LIMITED
First Appellant
JOSEA
GEORGE POTGIETER Second Appellant
and
NSOKO
PLANTERS LIMITED First Respondent
INGVAVUMA
ESTATES (PTY) LIMITED Second Respondent
YEZIMBALI
ESTATES ESTATES (PTY)
LIMITED
Third Respondent
BARRY
FORBES Fourth Respondent
FRANCOIS
VAN HEERDEN Fifth Respondent
GERHARDUS
SCHEEPERS Sixth Respondent
JUDGMENT
23rd
April 1993
BROWDE
JA:
All
the parties to this dispute are riparian owners of land on the banks
of the Ngwavuma River. Due' to a very severe and continued drought in
the country water has for many years been a very precious commodity
and water affairs in the country are governed by the Water Act 1967.
In terms of that Act General Notice No. 4 of 1976 was published in
the Swaziland Government Gazette on Friday January the 16th 1976 in
terms of which there were published the apportionments of water for
each riparian owner as determined by the Water Apportionment Board
for what was known as the Ngwavuma Water Control Area.
It
appears that late in the year 1991 or early 1992 a dispute arose
between the First Appellant on the one hand and the Respondents on
the other. According to allegations made by the Respondents the First
Appellant was using more than its apportioned share of the water from
the river. It seems that complaints made by the Respondents fell on
deaf ears and as a result the Respondents took the law into their own
hands with the intention of putting Appellants' pumps out of
commission. This culminated on the 24th of February 1992 in the First
Appellant launching an application in which it sought an order inter
alia interdicting the Respondents and their directors, shareholders,
managers and employees from trespassing on the First Appellant's farm
land and from entering the First Appellant's pump house and from
diverting or disturbing the flow of water to the . First Appellant's
pump house. This application was set
3
down
for hearing on 27 February 1992 but came before the Court only on the
following day. On that day the Respondents were given until 6th March
1992 to reply to the allegations of the First Appellant and by
consent an interim order was made in terms whereof the Respondents
undertook not to enter the First Appellant's property unlawfully and
not to interrupt or interfere with the flow of water to the First
Appellant's pump house. The costs thus far were reserved.
On
6th March 1992 the Respondents delivered their answering affidavits
in which they prayed that the application launched by the First
Appellant be dismissed with costs and on the strength of which
affidavits they purported to bring a counter-application against the
First Appellant claiming inter alia an order that the First Appellant
be interdicted and restrained from drawing more than 12.46% of the
natural flow of the water in the river at zone 31 as allocated to it
in terms of the General Notice No. 4 of 1976. On that day the parties
drew up a consent order which was made an Order of Court.
Because
it is this order which has given rise to the present appeal I set put
the terms in full, namely -
4
"It
is ordered that by consent and without prejudice to the parties,
pending determination of this application:
That
the Respondents' undertaking (namely the undertaking not to enter
upon the Appellants' premises unlawfully) is to remain in force;
That
the Applicant undertakes not to exceed its water allocation from the
Ngwavuma River as stated by Government Gazette No. 4/76 read with
Annexure "D" to the founding affidavit. (Annexure "D"
was a letter from the Ministry of Works, Power & Communications
to the Managing Director of one of the riparian owners namely
Swaziland Cotona Cotton Ginning Co. Ltd the terms of which are
irrelevant to the present proceedings).
That
the Applicant will allow the monitoring of the water pumped by the
Applicant from the Ngwavuma River. Such monitoring to be carried out
in the presence of either the Station Commander of Lubuli Police
Station or his representative or a member or representative of the
Water Apportionment Board. Such monitoring to be carried out by any
riverine user other than one cited as a Respondent or such
Respondent's employees. Any records of measurements to be furnished
to both Applicant and the Respondents.
That
the Applicant shall be entitled to be present when any measuring is
conducted.
That
the costs to be reserved. That the application is postponed to a
date to be arranged with the Registrar."
On
the 25th of March 1992 the First Appellant delivered a notice of
application giving notice that it intended to make application for an
order inter alia setting aside the notice of motion and affidavits in
support thereof of the Respondents,
5
namely
those in the counter-application, as being irregular in terms of Rule
30 of the High Court Rules. The Respondents thereafter on 1 April
1992 delivered a notice of intention to oppose the said Rule 30
application and on the 23rd of April 1992 filed a notice in reply
setting out the grounds on which the First Appellant's application in
terms of Rule 30 was to be opposed.
Subsequently
the matter was set down for hearing on 21 September 1992 but on 14
September 1992, on certificates of urgency, the Respondents brought
two urgent applications. They sought orders that the Second Appellant
be joined as a party to the application and that the First Appellant
and the Second Appellant be convicted of contempt of court for acting
in breach of the Order of Court of 6 March 1992. This application
elicited a further notice of motion emanating from the First
Appellant and dated 18 September 1992 in terms whereof the First
Appellant sought an order inter alia setting aside the notice of
motion and affidavits in the contempt application as being irregular
in terms of Rule 30.
The
Second Appellant on the same day delivered a notice of motion in
terms of which he claimed an order setting aside the notice of motion
seeking to join
6
him
also on the basis that it was irregular in terms of Rule 30.
Thus
it was that on the 21st of September 1992 there came before the
learned Chief Justice in the Court a quo the multiplicity of
applications and counter-applications. Because of the requirement of
Rule 30 that no further step be taken before the application for an
order declaring a proceeding to be irregular the Appellants filed no
affidavits in answer or reply to the matters in relation to which
Rule 30 applications were made. The argument before the learned judge
a quo ran into two days whereupon judgment was reserved. Thereafter,
however, the learned judge mero motu decided to hold an inspection in
loco before delivering his judgment, such inspection being held on
Friday 25 September 1992. On 1 October 199 2 the Respondents served
supplementary affidavits on the Appellants' attorneys of record which
affidavits were received by and considered by the Court a quo. When
the case was called on 7 October 1992 the learned judge a quo
postponed the matter until 16 October 1992 and, the Second Appellant
not yet having been joined, the Appellants were given until 13
October 1992 to file further affidavits. On the latter date the
7
First
Appellant gave notice of an urgent application in terms of Rule 30 to
be heard as a matter of urgency on Friday 16 October (the date to
which the case had been postponed) for the setting aside of the
aforesaid supplementary affidavits. Once again, because of the
wording of Rule 30, no affidavits were filed. After holding yet
another inspection in loco on 20 October 1992 the learned Chief
Justice delivered his judgment on 21 October 1992. It seems that in
that judgment the Court a quo did not decide the main application
brought by the First Appellant or the counter-application brought by
the Respondents thereto, but the learned judge confined himself to a
consideration of the application to join the Second Appellant and the
application for an order committing the First and Second Appellants
for contempt of court. In his judgment the learned Chief Justice,
after setting out the background and referring to the applications
before him said the following:
"On
all of that I think that there are three broad issues, which in this
particular case I would put in the following order: the first is
whether a wilful breach in bad faith of the undertaking in paragraph
2 of the order of 6 March by Valley Estates could constitute a
contempt of court by the company or its managing director, Mr
Potgieter.
The
second is whether the various legal and
8
technical
points taken on behalf of Applicant and Mr Potgieter affect the
outcome of the Respondents' application.
The
third is whether in fact there was such a breach."
The
learned judge a quo then proceeded to grant the application to join
Mr Potgieter and after reviewing the evidence before him (which of
course were the unanswered allegations made by the Respondents) came
to the conclusion that the First and Second Appellants had, in wilful
breach of paragraph 2 of the Order of Court, extracted more than the
company's permissible quantity of water from the river. Although
argument was, before us, directed also at showing that the Appellants
had not permitted monitoring of the water pumped by the Appellants
from the Ngwavuma River in contravention of paragraph 3 of the order,
the learned judge a quo did not seem to make any finding in this
regard. Although he refers to the specific assertion that from 25th
to 30th March Valley Estates refused to switch off its pumps to allow
its abstraction to be monitored and that it refused again on the 1st
of April when the request was made by the monitor of the Water
Apportionment Board the learned judge then goes on to say -
"I
think it is to be properly inferred that Valley Estates during the
period of monitoring was extracting more than its
9
agreed
quota of 12-46% of the flow and was therefore acting in contravention
of the order of 6 March".
In
my view the learned judge was correct in not making a finding in
regard to the question of the monitoring. Although it is true that
the deponents for the Respondents said that it was required that the
Appellants should switch off their pumps in order for there to be a
proper reading of the quantity of water being pumped by the
Appellants, there is no explanation for that contention on the papers
and there is certainly no specific agreement to switch off the pumps
in the order made by consent. All that the Appellants undertook to do
was to allow the monitoring of water pumped by the Applicant from the
Ngwavuma River. There is much to be said, I think, for the submission
in this regard made by Mr Du Toit who, together with Mr Fine,
appeared for the Appellants, that the persons responsible for the
monitoring of water pumped by the Appellants could have done so with
reference to the water which reached the farm lands of the
Appellants. The real issue in regard to the contempt proceedings is,
therefore, whether or not, in breach of the Order of Court, the First
Appellant exceeded its water allocation as provided for by the
Government Notice No. 4/1976. Although in the Court a quo Mr
10
Zar,
who appeared for the Respondents, argued that the breach had to be
proved on a balance of probabilities he conceded in argument before
us, albeit reluctantly, that such breach had to be proved beyond
reasonable doubt. I am of the view that this concession is rightly
made. In S__v Beyers 1968 (3) SA 70 (AD) at p. 8OE-G, Steyn CJ said
that contempt of court is an offence in respect of which a normal
sentence can be imposed. Although in Waterston v Waterston 1946 WLD
334 at 337 Clayden J appears to have found that the onus of proof in
contempt proceedings entails the balance of probabilities only this,
in my view, is wrong. It is hard to visualize a criminal offence
being proved on a balance of probabilities particularly when it might
result in the accused being sentenced to a term of imprisonment. I
therefore prefer the view expressed in Clement v Clement 1961 (3) SA
861 (T), a three judge decision of the Transvaal Provincial Division,
in which it was held that the non-compliance with the order (in order
to found a charge of contempt of court) must not only be wilful, but
also mala fide. Galgut J. as he then was said "whilst, as
already stated, his own papers suggest and even raise the probability
that he planned to keep the child here, I am not satisfied that the
papers
11
show
beyond all doubt that he was mala fide in so doing." Mr du Toit,
in this regard, referred us to Law of Contempt by Borrie & Lowe
in which, in dealing with the law of England, the learned authors say
(at p. 372) "it has also been established that since contempt of
court as a whole is an offence of a criminal character, it is
necessary even in cases of civil contempt to prove the offence beyond
all reasonable doubt." This was the view expressed in the case
of Re Bramblevale Ltd (1969). 3 All ER 1062 (C.A.).
I
turn now to the wording of the General Notice.
In
paragraph 3 thereof the apportionments in respect of the Ngwavuma
Water Control Area (in which Appellants' farm lies) are said to be
calculated "as a proportion (percentage) of normal September
flow related to a gauge station." (My emphasis). And in the
explanatory notes on the schedule (which schedule sets out the
percentages of "normal flow" to which each riparian owner
is entitled) , it is stated "on the Ngwavuma, until more gauge
station are constructed, abstractions have to be related to flows
measured at gauge station No. 8 situated a few kilometres upstream of
Nsoko". Mr Du Toit has contended that since there is no evidence
whatsoever of any reading of
12
the
flow at gauge station No. 8 there was no proof of a breach of the
order, let alone proof beyond all reasonable doubt. To counter this
Mr Zar submitted that once it is clear from other evidence that the
Appellants were using more than their rightful allocation of water it
was not necessary for any evidence to be given regarding gauge
station 8 or the flow at that station. I cannot agree with that
submission. No reason could be advanced why the reading was not made
at gauge station 8 and since, as I have already pointed out, this is
a criminal offence it is insufficient in my view to rely on
inferences, and inconclusive ones at that, when no reason could be
advanced why the flow was not read at gauge station No. 8. One of the
reasons why I think the inferences sought to be drawn by Mr Zar are
unreliable is that in terms of explanatory note 5 "the method of
apportionment adopted assumes that the flow apportioned will be used
either for 24 hours each day or alternatively be diverted to storage
for later use." Prima facie it seems to me that any particular
reading at any given moment is, therefore, inconclusive unless
correlated with what is taken over a 24-hour period. In the result,
although there is serious suspicion that the First Appellant was
using more than its
13
rightful
percentage of the water, this was not proved beyond reasonable doubt
and- that consequently the conviction for contempt of court was not
justified. Having decided that, it seems to me to be irrelevant
whether the joinder of the Second Appellant was right or wrong. His
conviction must also be set aside.
With
regard to the costs of the proceedings in the Court a quo Mr Zar has
submitted that a good deal of the argument in that Court concerned
the applications brought by the Appellants in terms of Rule 30. These
applications raised various technical objections to the application
for joinder and the contempt proceedings. The learned Chief Justice
found there was no merit at all in any of the various technical
objections and consequently dismissed them. No reason has been
advanced in this Court which has persuaded us to take a different
view from that adopted by the learned Chief Justice including the
granting of costs on the attorney and client scale. We have been
invited by Mr Zar to indicate to the Taxing Master what proportion of
the proceedings in the Court a quo was taken up by the argument on
the Rule 30 applications. With the information at our disposal it is
not possible to do that with any
14
accuracy
particularly as we do not intend perusing in detail the volumes which
have been placed before us on appeal containing a transcript of the
argument of counsel in the Court a quo. On a somewhat arbitrary
basis, therefore, but in an effort to do justice between the parties,
I have come to the conclusion that justice between the parties would
be served if I found, as I do, that two-thirds of the time in the
Court a quo was spent on the merits of the Rule 30 applications.
To
sum up, therefore, I would make the following orders in this appeal:
The
appeal is upheld with costs, including the costs of two counsel.
Two-thirds
of the Respondents' costs in the Court a quo must be paid by the
Appellant on the attorney and client scale.
J.
BROWDE
JUDGE
OF APPEAL
I
agree, and it is so ordered
D.A.
MELAMET
PRESIDENT,
COURT OF APPEAL
I
agree
B.
DUNN
ACTING
JUDGE OF APPEAL.
