THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 427/19

In the matter between:

CAREL WYNAND LE ROUX NO
FIRST APPELLANT
NIEL FICK NO
SECOND APPELLANT
ANDRONIKUS GRIESSEL NO
THIRD APPELLANT
(in their capacities as trustees of the Goudyn
Plase Trust (IT221/97))

and

THEUNIS CHRISTOFFEL BOTHA NO
FIRST RESPONDENT
THEUNIS CHRISTOFFEL
BOTHA (JNR) NO
SECOND RESPONDENT
HILDE BOTHA NO                                              THIRD RESPONDENT
(in their capacities as trustees of the TC Botha
Trust (IT318/97))
THEUNIS CHRISTOFFEL BOTHA              FOURTH RESPONDENT

MINISTER OF WATER
AND SANITATION

FIFTH RESPONDENT
MEC ENVIRONMENTAL AFFAIRS AND
DEVELOPMENT PLANNING,
WESTERN CAPE

SIXTH RESPONDENT

Neutral citation: Le Roux NO and Others v Botha NO and Others (Case no
427/19) [2020] ZASCA 67 (17 June 2020)
Coram:
NAVSA, MOCUMIE and MAKGOKA JJA and LEDWABA
and GORVEN AJJA
Heard:
4 May 2020
Delivered: This judgment was handed down electronically by circulation to
the parties' representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 10h00 on 17 June 2020.

Summary: Servitudes – water drawing and leading – disputes – matter
settled – costs – considerations.

_____________________________________________________________

ORDER
_____________________________________________________________

On appeal from: Western Cape Division of the High Court (Binns-Ward J,
sitting as court of first instance):
The order of the court below is set aside and the following order by
consent between the appellants and the first to fourth respondents is made in
substitution:
a)
That the trustees of the Goudyn Plase Trust (the Goudyn trust) connect
the pipe from the tap below Dam 3 to the pipe in aabb at a place pointed out
by the trustees of the TC Botha Trust (the Botha trust), but not further than
5m from the said tap, at the Goudyn trust’s cost.
b)
That a mechanism for the division of water be designed and installed
by a suitable professional person, located as a matter of practical preference
at the existing emergency abstraction point currently in situ, the costs thereof
to be shared between the two trusts equally.
(i)
This mechanism will divide all water extracted between the
parties on a 60% (the Botha trust) 40% (the Goudyn trust) ratio of
division, except for water to be conveyed to the homestead farm of the
Botha trust, and the farm of Piet Le Roux during the exercise of their
existing water turns.
(ii) It is recorded that the understanding is that the existing water
turns of the Botha trust in its capacity as owners of the homestead farm
and Piet Le Roux (‘Water Turn Holder(s)’) are as follows:
(a) Homestead farm: 16 hours every 14 days;
(b) Piet Le Roux’s farm: 52 hours every 14 days.

(iii) In practice, this will mean that when the above water turns
commence, extraction of water by the Goudyn trust and the
Botha trust will cease for the duration of those water turns, as
was the case in the past. When each water turn terminates, the
extraction pipe or sleuth utilised during the water turns, will be
closed off to enable the Goudyn trust and the Botha trust to share
in all the water available at the extraction point on a 60/40
percentage (60% the Botha trust and 40% the Goudyn trust) until
the following water turn commences.
c)
That the Owner of Portion 3 (currently the Botha trust) is entitled to
make use of the servitude works (in its old, current or future form) for
purposes of abstraction of water as a riparian land owner, limited to a use
strictly in accordance with the terms and conditions of this settlement
agreement.
d)
That if any agreed amendments to the servitudes as registered are to be
undertaken, such registered servitudes will also be amended to state the
entitlements of the owner of Portion 3, as set out in c) above, clearly.
e)
That the Goudyn trust is entitled to install a pipe from the ‘New
Abstraction Point 4 (existing abstraction point)’ to Point s. The installation of
this pipe takes place after the mechanism mentioned in b) above is in place
and is for the Goudyn trust’s cost.
f)
That the Botha trust will not oppose any application by the Goudyn trust
to increase the volume of Dam 1. That, equally, the Goudyn trust will not at
any time in future oppose any application by the owner of Portion 3 to enlarge
the capacity of Dam 3.

g)
That the Botha trust undertakes not to plant anything over the new pipes
installed by the Goudyn trust, and to allow reasonable access by the Goudyn
trust to the pipes for inspection and maintenance.
h)
That the Botha trust’s new camp site will extract its water from the
Botha trust’s portion of water, and not directly from the river.
i)
That the Botha trust will apply for the necessary authorisation to
proceed with the work agreed upon and regularisation of the ‘new abstraction
point’ at its own cost and with the support of the Goudyn trust, where
necessary for purposes of motivation of such regularisation application. If any
penalties should be levied or imposed for any work done at the new
abstraction point or in the river or if the Botha trust should appeal against any
decision of the relevant authorities, it will carry the costs for such penalty
and/or appeal.
(i)
A period of 24 months will be afforded for regularisation.
(ii) The two trusts may agree to the extension of this period if
necessary, which consent will not be unreasonably withheld by either
of them.
j)
That, should directives be issued as a condition for authorisation that
are in conflict with the agreed system, the system will be amended only to the
extent necessary for compliance with such directives, still ensuring the same
nett result of the sharing of water agreed upon. If this net result cannot be
achieved on the agreed system, the two trusts will agree to a different system
that complies with the conditions for authorisation, with a nett result of a 60/40
division of all water extracted at the shared point after Piet Le Roux and the
homestead farm are provided for in accordance with what is legally due to
them as set out in b(ii) above. Except as set forth herein, neither trust may
extract any water from the Wolvenkloofstream upstream from the new

extraction point, or any other alternative shared point of abstraction to be
erected in terms of this agreement.
k)
That registration of any new servitudes and the cancellation of any
existing servitudes necessary to reflect all changes to the previous regime,
agreed herein, will be for the Goudyn trust’s account, and the Botha trust
consents thereto where necessary. Piet Le Roux’s consent will also be
obtained to do this.
l)
That, should the water works agreed to in this settlement agreement not
be authorised within the period of 24 months (or a further extension of time
granted by the Goudyn trust to the Botha trust) for any reason, or if
Piet Le Roux should not consent to the agreements regarding the water
distribution system or the amendment of existing servitudes, the original
system at the servitude point ut will be restored according to the letter of the
servitudes currently in existence, or as closely thereto as possible. The
agreement to share water on a 60/40 basis after provision is made for the
entitlements of Piet Le Roux’s farm and the homestead farm, however, will
still stand. The two trusts will then share the costs of restoration of the system
to its original state equally.
m)
That the two trusts shall, immediately upon the settlement agreement
being made an order of Court, proceed to implement the agreed settlement
arrangements regarding regularisation, servitudes and water abstraction and
the distribution thereof, but on condition that the mechanism referred to in
b)(i) above will not be constructed before due authorisation by the relevant
authorities to implement the agreed settlement arrangement.
There shall be no order as to costs in either the application or the appeal.

_____________________________________________________________

JUDGMENT
________________________________________________________________________

Gorven AJA (Navsa, Mocumie and Makgoka JJA and Ledwaba AJA
concurring)

[1] This appeal relates to water servitudes over agricultural land. A river
runs through a farm in the Worcester area. The river is the Wolvenkloofstroom
(the river). A dispute arose as to the drawing and leading of water from the
river. The background to the matter is of some moment. The farm was owned
by the father of Andries Abraham Le Roux (Andries) and his brother Schalk
Johannes Le Roux (Schalk). In 1983, Andries and Schalk bought it from their
father and thereafter owned it in equal undivided shares. Andries and Schalk
agreed in 1987 to divide the farm into four properties. This gave rise to a Deed
of Division by which transfer of the subdivided farms was registered in 1990.
At the same time as the farm was subdivided, servitudes were registered.
Andries became the owner of the three farms described as Portions 1 and 2 of
the Farm Goudyn and the Remainder of the Farm Goudyn (the dominant
farms). Schalk became the owner of the farm described as Portion 3 of the
Farm Goudyn (the servient farm).

[2] The river runs over the servient farm1 and is a tributary of the Holsloot
river. The dominant farms each hold registered servitudes2 over the servient
farm. The servitudes allow the dominant farms to draw water3 from the river

1 It also runs over the Remainder but, for present purposes, that is of no moment.
2 It is the owners of a property who hold servitudes in their capacity as owners but, for the sake of conciseness,
I shall refer to the properties as holding the servitudes.
3 Known as a servitude of aquaehaustus.

and lead it4 over the servient farm along specified routes by way of either
pipelines or furrows. There are dams on Portions 1 and 2 (dam 1 and dam 2)
and on the servient farm (dam 3). Dams 1 and 2 have a total capacity of about
28 000 cubic metres and dam 3 about 86 000.

[3] At the time of sub-division, the water from the river was drawn
immediately upstream of a weir (the original weir). The original weir is
situated on the servient farm. A pipe drew water from just above the weir into
a furrow (the extraction pipe). The water was led to dam 1 and dam 1 fed dam
3 along a furrow running between them. Dam 2 was fed separately. The
servitudes gave effect to the situation which obtained at the time of
subdivision except that no provision was made in them for dam 3 to obtain
water from dam 1. Two other owners of farms (the lower farms) hold
servitudes over the servient farm to use water during specific times
(waterbeurte). They lead the water along the same routes as Portion 2 up to a
certain point.

[4] Andries, the father of the first appellant, sold the dominant farm to the
trustees of the Goudyn Plase Trust (the Goudyn trust) in 2007. On
12 October 2012, Schalk sold and transferred the servient farm to the trustees
of the TC Botha Trust (the Botha trust). The Botha trust also owns one of the
lower farms enjoying water use at specified times. When the Botha trust took
transfer of the servient farm, the Goudyn trust blocked the furrow between
dam 1 and dam 3, thus cutting off the previous supply of water to dam 3. The
Goudyn trust avers that it had allowed Schalk to use water from the original

4 Known as a servitude of aquaeductus.

weir while he was owner as a personal favour. It says that the servient farm
was not entitled to that water and it was within its rights to terminate this
supply.

[5] After the furrow between dams 1 and 3 was closed, the servient farm
had to obtain water directly from the river. It did so by utilising water drawn
into the furrow from the extraction pipe above the original weir and leading
some of that water into a pipeline over the servient farm directly to dam 3.
The Goudyn trust took the view that the Botha trust was not entitled to any
water from the original weir and the extraction pipe. This led to the Goudyn
trust initiating spoliation proceedings.

[6] Events overtook that application when, on 15 November 2013, a severe
flood washed away the original weir. It also washed away the extraction pipe.
Thereafter, the Botha trust erected a new weir (the new weir) and 400mm
extraction pipe. The new weir was completed on 25 November 2013. It is
situated some 65 metres above the site of the original weir. The Botha trust
also excavated a new furrow. The new furrow is fed from the new weir by the
extraction pipe. Across the furrow, an earth wall was constructed with two
below wall pipes feeding the farms and above wall pipes for any overflow.
The short below wall pipe is 125mm in diameter and discharges water into the
new feeder furrow which was joined to the servitude furrow feeding the
dominant farms. The long below wall pipe is 200mm in diameter and carries
water to dam 3. This means that the servitude furrow to the dominant farms is
supplied through only the 125mm pipe, while the servient farm is supplied
through a 200mm pipe to a certain point, after which dam 3 is supplied

through a 125mm pipe. The servitude furrow was previously fed from the
original extraction pipe which was 400mm in diameter.

[7] The original weir has not been reconstructed. It is common cause that,
since the flood, all three dams and the lower farms have been fed from the
new weir. It is also common cause that the Botha trust did not obtain
environmental authorisation for the construction of the new weir and
waterworks. A process seeking authorisation after the fact is currently
pending. The new weir was constructed to meet immediate needs. The
Goudyn trust, which took no part in the works constructed after the flood,
complains that the pipe leading into its servitude furrow is now 125mm in
diameter whereas it was previously 400mm. The pipe leading to the servient
farm is 200mm in diameter. The complaint is that the Goudyn trust receives
only a portion, and an even smaller one than hitherto, of the water extracted
from the river at the new weir, whereas it should be entitled to all the water.
In addition, it complains that the new weir and waterworks are unlawful,
having been constructed without the requisite permissions.

[8] The new weir is justified by the Botha trust on the basis that it is less
extensive than the original one, runs parallel to the river and not across it,
allows for gravity feeds and prejudices no-one. It is claimed to be less likely
to wash away or require repairs. The original weir required repairs caused by
river pressure about twice a year. The new weir required no repairs during the
two years preceding the application. In any event, says the Botha trust, the
flood altered the area around the original weir, making the cost of any
replacement prohibitive and requiring a large amount of material to be

utilised. This would require consent from the authorities and an environmental
impact study. The Botha trust resists the reconstruction of the original weir.

[9] The Goudyn trust applied to the Western Cape Division of the High
Court for a declaration of rights concerning the servitudal rights and two
interdicts. The substantive relief sought can be summarised as follows:5
Declaring that the Goudyn trust is entitled, in the exercise of its servitudal rights,
to abstract water by means of a weir erected, or to be erected, as indicated on the map
referred to in the servitudes alternatively at the place where the original weir had been
erected prior to the flood of 15 November 2013.
Interdicting the Botha trust and Mr Botha in his private capacity from interfering
with, or preventing the exercise of, the Goudyn trust’s servitudal rights.
Directing the Botha trust and Mr Botha to forthwith:
3.1
Permit the full flow of all water abstracted by the original weir to pass undisturbed
and unobstructed through the Goudyn trust’s servitude furrows and pipelines, inclusive of
the operation of the diversion sluices of the Goudyn trust at points s and h.
3.26
Permit the Goudyn trust to replace, fix and set iron or steel sluice plates, which
were previously removed from the diversion boxes at points s and h, the latter in order to
give effect to the water use by the lower farms.
3.3
Demolish the weir or structures that have been constructed upstream from the
servitude weir; alternatively, put them out of operation in a manner which would prevent
any water being thereby abstracted, or led away, from the river.
3.4
Remove and demolish the weir or structures erected in the river upstream from the
original weir to dam up water in the river, alternatively to put them out of operation in a
manner that will result in the water in the riverbed flowing freely and unhindered to the
original weir.

5 I am using the language used in this judgment to describe the various parties and aspects of the servitudes
for the sake of clarity.
6 This was numbered 3.3 without a paragraph 3.2 so this and the subsequent paragraphs have been
renumbered to follow sequentially.

[10] The demolition order was premised on the averment that the new weir
and structures fell foul of the National Water Act 36 of 1998 (NWA) and the
National Environmental Management Act 107 of 1998 (NEMA). It was
alleged that these interfered with the bed, banks and course of the river ‘in
order to impede and divert the flow of water in the river.’ As such it was
contended that they contravened s 21(c) and (i) of the NWA.

[11] The Minister of Water and Sanitation and the MEC for Environmental
Affairs and Development Planning for the Western Cape were joined as
respondents but, apart from an employee of the former having delivered an
affidavit indicating that he would consider the answering affidavit before
deciding what course to take, neither took part in the matter, even after the
answering affidavit was delivered. This is also true of the appeal.

[12] The application was referred for the hearing of oral evidence. It was
thereafter dismissed with costs by Binns-Ward J who refused leave to appeal
to this court. Leave to appeal was granted by this court.

[13] Both the trusts claim to have been open to a sensible, negotiated
solution. The Goudyn trust contends that, in closing off the furrow between
dams 1 and 3, thus depriving the latter of water from the river along the
traditional route, it was simply giving effect to the servitude. The Botha trust
claims that this was done out of spite because the Goudyn trust had wanted to
purchase the servient farm when Schalk sold it to the Botha trust. The Goudyn
trust was thereby attempting to force the Botha trust to sell to it since it would
have no water with which to farm. On the other hand, the Botha trust claims

that it has no obligation to supply water to the dominant farms from the new
weir since it is not the servitudal weir and had done so out of generosity.

[14] The Goudyn trust sought an order that the new weir be demolished and
contended that the Botha trust was not entitled at all to water extracted from
the river above the original weir once it has been restored. For its part, the
Botha trust disputed the servitudes, saying that they should be set aside as
lacking consensus or were at least subject to rectification so as to allow dam
3 to be fed from dam 1. When Schalk did not make himself available for cross-
examination, the Botha trust perforce abandoned this line of argument. It also
disputed the declaration of rights sought by the Goudyn trust that it had a right
to erect a weir at the point where the original weir stood prior to the flood,
saying that this would be illegal.

[15] During the hearing before us, it was put to the parties that, as
neighbouring farmers, the matter cried out for a sensible, practical, negotiated
solution. They were each entitled to whatever water use is allowed by the
prevailing legislation and would be better placed than the court to work out
how to allocate water between them if there was any shortage. The parties had
attempted to settle the matter prior to the appeal hearing but took the
opportunity to make further such attempts. During the hearing, the parties
indicated that they had arrived at an in-principle solution but would require
time to arrive at a detailed, agreed order. They requested that the matter be
adjourned for that purpose but indicated that it might be necessary for this
court to determine the question of costs. They produced an agreed order as to
the merits by 26 May 2020. However, they indicated that the issue of costs
had not been resolved and would need to be decided. They were afforded an

opportunity to address written argument on that issue and each of them made
further written submissions. This, then, is the only aspect of the matter on
which a decision is required.

[16] The Goudyn trust submitted in its further written submissions on costs
that, although it had good grounds for being awarded the costs of both the
application and the appeal, it would be appropriate in all the circumstances of
the matter for each party to bear its own costs.

[17] The Botha trust argued strenuously that it should be awarded costs in
both fora. It argued that the relief sought by the Goudyn trust was all premised
on the Botha trust not being entitled to draw any water from the servitude
weir, once reconstructed and that the new weir and waterworks are illegal and
must be demolished. These submissions are only partly accurate. The
declaration of rights sought is not premised on exclusive use. It claimed no
more than is prescribed in the servitudes. While some of the relief arguably
went too far in attempting to claim the sole right to draw water from that point,
since water use rights are determined by legislation, this was not the only
aspect of the relief which was opposed by the Botha trust.

[18] As for the contention, mentioned in argument during the hearing and
repeatedly by the Botha trust in the further written submissions on costs, that
it had been ‘dragged to court’, the Botha trust initially claimed that the
servitudes should either be set aside due to lack of consensus or should be
rectified. I also do not agree with the submission that the Goudyn trust
abandoned the relief sought during the hearing. It certainly did not abandon
the need for the declaration of rights concerning the servitude since this had

been contested terrain and had been disallowed by the court of first instance.
The agreed order recognises this right and makes provision for the amendment
of the servitudes if the new weir is approved by the authorities. Had the
Goudyn trust not persisted in the appeal, I think it is fair to say that no
settlement would have occurred and the parties would have continued at
loggerheads with each other.

[19] In the totality of the circumstances it cannot therefore be said that either
party would have achieved clear and substantial success. There were bases
which, on the face of it, could justify some of the relief sought by the Goudyn
trust and bases on which other aspects of the relief sought could, on the face
of it, have been successfully resisted. It would be inappropriate to say more
than that in the light of the settlement of the merits. As was submitted by the
Goudyn trust, this court does not lightly adjudicate matters where the only
remaining issue relates to costs.

[20] The parties have now embarked on a new chapter of neighbour
relations. It is sincerely hoped that this heralds in an era of co-operation in
place of the past combative contestation. The extent of the co-operation to
which they have committed themselves can be gleaned from the terms of the
agreed order sought. In my view, it would not be helpful in fostering these
neighbour relations for a costs order to be made in either the application or
the appeal. This may serve to declare a winner and a loser and threaten to sour
their future relationship. In all the circumstances, it seems to me equitable to
let the costs lie where they fall, without making any order.

[21] In the result, the following order issues:

The order of the court below is set aside and the following order by
consent is made in substitution:
a)
That the trustees of the Goudyn Plase Trust (the Goudyn trust) connect
the pipe from the tap below Dam 3 to the pipe in aabb at a place pointed out
by the trustees of the TC Botha Trust (the Botha trust), but not further than
5m from the said tap, at the Goudyn trust’s cost.
b)
That a mechanism for the division of water be designed and installed
by a suitable professional person, located as a matter of practical preference
at the existing emergency abstraction point currently in situ, the costs thereof
to be shared between the two trusts equally.
(i)
This mechanism will divide all water extracted between the
parties on a 60% (the Botha trust) 40% (the Goudyn trust) ratio of
division, except for water to be conveyed to the homestead farm of the
Botha trust, and the farm of Piet Le Roux during the exercise of their
existing water turns.
(iv) It is recorded that the understanding is that the existing water
turns of the Botha trust in its capacity as owners of the homestead farm
and Piet Le Roux (‘Water Turn Holder(s)’) are as follows:
(c) Homestead farm: 16 hours every 14 days;
(d) Piet Le Roux’s farm: 52 hours every 14 days.
(v)
In practice, this will mean that when the above water turns
commence, extraction of water by the Goudyn trust and the
Botha trust will cease for the duration of those water turns, as
was the case in the past. When each water turn terminates, the
extraction pipe or sleuth utilised during the water turns, will be
closed off to enable the Goudyn trust and the Botha trust to share
in all the water available at the extraction point on a 60/40

percentage (60% the Botha trust and 40% the Goudyn trust) until
the following water turn commences.
c)
That the Owner of Portion 3 (currently the Botha trust) is entitled to
make use of the servitude works (in its old, current or future form) for
purposes of abstraction of water as a riparian land owner, limited to a use
strictly in accordance with the terms and conditions of this settlement
agreement.
d)
That if any agreed amendments to the servitudes as registered are to be
undertaken, such registered servitudes will also be amended to state the
entitlements of the owner of Portion 3, as set out in c) above, clearly.
e)
That the Goudyn trust is entitled to install a pipe from the ‘New
Abstraction Point 4 (existing abstraction point)’ to Point s. The installation of
this pipe takes place after the mechanism mentioned in b) above is in place
and is for the Goudyn trust’s cost.
f)
That the Botha trust will not oppose any application by the Goudyn trust
to increase the volume of Dam 1. That, equally, the Goudyn trust will not at
any time in future oppose any application by the owner of Portion 3 to enlarge
the capacity of Dam 3.
g)
That the Botha trust undertakes not to plant anything over the new pipes
installed by the Goudyn trust, and to allow reasonable access by the Goudyn
trust to the pipes for inspection and maintenance.
h)
That the Botha trust’s new camp site will extract its water from the
Botha trust’s portion of water, and not directly from the river.
i)
That the Botha trust will apply for the necessary authorisation to
proceed with the work agreed upon and regularisation of the ‘new abstraction
point’ at its own cost and with the support of the Goudyn trust, where
necessary for purposes of motivation of such regularisation application. If any

penalties should be levied or imposed for any work done at the new
abstraction point or in the river or if the Botha trust should appeal against any
decision of the relevant authorities, it will carry the costs for such penalty
and/or appeal.
(j)
A period of 24 months will be afforded for regularisation.
(ii) The two trusts may agree to the extension of this period if
necessary, which consent will not be unreasonably withheld by either
of them.
j)
That, should directives be issued as a condition for authorisation that
are in conflict with the agreed system, the system will be amended only to the
extent necessary for compliance with such directives, still ensuring the same
nett result of the sharing of water agreed upon. If this net result cannot be
achieved on the agreed system, the two trusts will agree to a different system
that complies with the conditions for authorisation, with a nett result of a 60/40
division of all water extracted at the shared point after Piet Le Roux and the
homestead farm are provided for in accordance with what is legally due to
them as set out in b(ii) above. Except as set forth herein, neither trust may
extract any water from the Wolvenkloofstream upstream from the new
extraction point, or any other alternative shared point of abstraction to be
erected in terms of this agreement.
k)
That registration of any new servitudes and the cancellation of any
existing servitudes necessary to reflect all changes to the previous regime,
agreed herein, will be for the Goudyn trust’s account, and the Botha trust
consents thereto where necessary. Piet Le Roux’s consent will also be
obtained to do this.
l)
That, should the water works agreed to in this settlement agreement not
be authorised within the period of 24 months (or a further extension of time

granted by the Goudyn trust to the Botha trust) for any reason, or if
Piet Le Roux should not consent to the agreements regarding the water
distribution system or the amendment of existing servitudes, the original
system at the servitude point ut will be restored according to the letter of the
servitudes currently in existence, or as closely thereto as possible. The
agreement to share water on a 60/40 basis after provision is made for the
entitlements of Piet Le Roux’s farm and the homestead farm, however, will
still stand. The two trusts will then share the costs of restoration of the system
to its original state equally.
m)
That the two trusts shall, immediately upon the settlement agreement
being made an order of Court, proceed to implement the agreed settlement
arrangements regarding regularisation, servitudes and water abstraction and
the distribution thereof, but on condition that the mechanism referred to in
b)(i) above will not be constructed before due authorisation by the relevant
authorities to implement the agreed settlement arrangement.
There shall be no order as to costs in either the application or the appeal.

_________________________
GORVEN AJA
ACTING JUDGE OF APPEAL

Appearances

For appellant:
A La Grange SC
Instructed by:
Du Bois Attorneys, Robertson
Symington & De Kok, Bloemfontein

For respondent:
T J Nel
Instructed by:
Krouwkams Attorneys, Worcester
Phatshoane Henney, Bloemfontein.