In a recent case heard by the Supreme Court of Appeal, a large residential development in Johannesburg which has the privilege of a river running through it, found itself in the undesirable position of not knowing which authority to turn to for assistance after incurring damage from seasonal flooding of the river.
Over a period of years, the establishment of new residential developments around the estate had resulted in the urbanisation of the area, resulting in increased volumes of water into the estate’s river.
In terms of the local By-Laws, and other environmental laws, this consequence should have been avoided. However, the opportunity to restrain the movement of water in each new development was not implemented.
Who Is Responsible?
The issue brought before the Supreme Court of Appeal was whether the local municipality was responsible for the damage caused by the flooding river to the estate, or whether that responsibility lay elsewhere.
In terms of the National Water Act, 1998, all rivers and natural water reservoirs belong to the State. It was proposed by the estate that if the local municipality was not responsible for the water damage caused to the estate, then the State as proprietor of all water should take up that responsibility.
One of the provisions of the National Water Act is that any owner of land which interferes with the natural course or flow of water over its land, must make application for and receive a Water Use License prior to such interference.
The Supreme Court of Appeal held that while all three entities, namely, the estate itself, the local municipality, and the State, might well be responsible (in part or whole) to make safe the flow of water through the estate, the Court was not in a position to make any order in favour of the estate because the estate had not, prior to its launching the Court action, applied for and received a Water Use License in respect of the estate.
Key Takeaway
Any owner of land which has a body of water, whether a river or otherwise, should investigate whether it requires a Water Use License in terms of the National Water Act. This will largely depend on whether the owner intends to interfere (even in a relatively modest fashion) with the natural flow of such water.
Owners of land should be vigilant as to the nature of property development around them. The general principle is that the flow of water from any neighbouring land should, after completion of any development on the neighbouring land, be no greater than it was prior to such development. Importantly, all owners of land should be aware that they can interfere in a proposed development which disregards this principle.
Further, the State and our courts shall not come to the assistance of a landowner in circumstances where a Water Use License should have been applied for, but was not.