KAMOCHA J: The
applicant was granted on 10 November 2009, a provisional order which was
amended to read as follows in the interim order granted:-
“Pending the finalization of
this matter, applicant be and is hereby granted
the following relief:-
1.
The respondents
be and are hereby ordered and directed to forthwith take all reasonable steps
and do every act necessary to unblock or re-connect the passage of water
through the underground pipeline from the borehole along the Save River bank on
one part of Lot 5 through Lot 8 into the main part of Lot 5 of Devure Ranch;
2.
If the
respondents fail to forthwith unblock the passage of water pumped into the
underground pipeline through Lot 8 into the main part of Lot 5 of Devure Ranch,
the Deputy Sheriff be and is hereby directed and authorized to act in the
respondents' stead and do all acts necessary to unblock the passage of water
through the underground pipeline into applicant's Msaize Ranch in Lot 5 of
Devure Ranch.
3.
The members of
the Zimbabwe Republic Police, based at Bikita Police Station shall ensure full
compliance with this provisional order by all the respondents jointly and
severally, whether directly or through their agents or employees.”
In the final order the respondents were being called upon to
show cause why a final order should not be made in these terms:-
“(1) Pending
finalization of the administrative process of the applicant's claim and
registration of a permanent servitude of passage of water in favour of Lot 5 of
Devure Ranch against the respondent's Lot 8 of Devure Ranch in terms of section
75 of the Water Act [Chapter 20:24], the respondent and all those acting on its
behalf be and are hereby interdicted from blocking or interfering with the
passage of water through the underground pipelines that run from the part of
Lot 5 where the borehole and water pump were installed, through Lot 8, into the
rest of Lot 5 of Devure Ranch.
(2) The
respondent be and is hereby ordered to pay the costs of suit.”
The parties in this matter are registered owners of pieces of
land in the Save Conservancy. The
applicant owns Lot 5 of Devure Ranch, Save Conservancy, also known as Msaize
Ranch while the second respondent owns Lot 8 of Devure Ranch, Save Conservancy
also known as Chapungu Ranch.
During the 1991 to 1992 drought
period the applicant together with other lot holders of Devure Ranch pooled
resources and drilled a borehole and installed an electric water pump along the
Save River bank in Lot 5 of Devure Ranch.
They laid down underground pipes to carry water from the part of Lot 5
where the borehole was drilled through Lot 8 into the main part of Lot 5 and to
other participating lots of Devure Ranch.
The participants engaged the Zimbabwe Electricity Supply Authority to
install electricity to the electric water pump at the borehole. The borehole seems to be a very prolific one
as it has been the main source of water for 17 years for all the lots of Devure
Ranch applicant's and 2nd respondent's included.
The applicant alleged that at all
material times since the underground pipeline had been laid down through Lot 8,
there had always been a common understanding and agreement among the interested
parties to the effect that the other lots, including applicant's Lot 5, had an
unregistered servitude of passage of water on Lot 8 and that the owner of Lot 8
must not interfere with the flow of water through the underground pipeline in a
manner that would be adverse to the servitude of passage enjoyed by the other
lots of Devure Ranch.
The respondents were made aware of
that arrangement when they took possession of Lot 8 after buying it from
Lowveld Marketing Service (Pvt) Ltd.
They abided by the arrangement for three years. The respondents, however, changed their minds
by July 2009 and instructed their legal practitioners to write to the applicant
on 30 July 2009 in the following terms:-
“Dear Sir,
Re: Chapungu Ranch Water Pipeline
We have been consulted by Pabst Holdings (Pvt) Limited, as
the owner of Chapungu Ranch in the Save Valley Conservancy, in connection with
the pipeline on Chapungu ranch into which you have, with our client's consent,
been pumping water from a borehole close to the Save River and from which you
have been drawing water for game watering holes on your adjoining ranch Msaize.
Our client intends to expand its operations on Chapungu Ranch
which will require the utilization by it of the full capacity of the pipeline.
Our client has requested us to give you notice therefore that
with effect from the 1st November 2009 you will need to have made
other arrangements for the water currently drawn off the Chapungu ranch
pipeline.
Yours faithfully
Coghlan, Welsh & Guest”
On receipt of the above letter, the
applicant, through its representative contacted the third respondent in an
effort to resolve the issue but it seems that whatever discussions that may
have taken place were not fruitful.
Hence on 4 November, 2009 the
respondents disconnected or blocked the passage of water through the
underground pipeline on the basis that the servitude was not registered against
the title deeds of lot 8. As indicated
in their letter they wanted exclusive use of the underground pipeline.
As a direct result of the
respondent's actions applicant's Msaize Ranch in Lot 5 ran dry. It had no water for both human consumption
and wild life in the ranch. There was no
water for professional hunter clients who had pre-arranged contracts and
bookings to undertake safari hunting on the ranch. The blocking of passage of water gravely
threatened the life or existence of wild life which included elephants, impala,
eland, wildebeest and leopards. The
applicant had 65 employees at the camp and professional hunters were due to
commence soon. All these needed access
to water, but the respondents had blocked the passage of water into the
applicant's ranch without just cause, so the applicant's submission went. Yet on the other hand no conceivable
prejudice would be suffered by the respondents if they were to be ordered to
unblock the passage of water into applicant's ranch since applicant had always
drawn water through the underground pipeline without any incident ever since
the respondents took occupation of Lot 8 of Devure Ranch about three years ago.
In the light of what the respondents have done the applicant
has since lodged its application with the Administrative Court claiming a
permanent servitude of passage of water to be registered against the title
deeds of Lot 8 of Devure Ranch. The respondents
were duly served with the requisite notice in writing in terms of section 75 of
the Water Act [Chapter 20:24]. Having
taken all the necessary steps to acquire a permanent servitude of passage of
water the applicant applied for and was granted a provisional order which it
now seeks to have confirmed.
The main thrust of the respondents'
case was that they had not been made aware at the time they bought Lot 8 that
there was any servitude across Lot 8 in favour of Lot 5. In fact there was no servitude registered against
the title deeds of lot 8. The position
as they understood it was that the underground pipeline was with the permission
of the owner of Lot 8. That permission
was withdrawable at any time when the owner was in a position to further develop
Lot 8. The respondents had never agreed
to a servitude over Lot 8. Since they
were at liberty to withdraw the permission at any time that suited them they
decided to do so by letter of 30 June 2009 quoted above at page 3.
The respondents emphasized that in
the absence of a registered servitude over their property or of any agreement
to bind them applicant could have no claim for servitude. Consequently, since applicant enjoyed no
servitude right over Lot 8 its owners were entitled to withdraw the permission
for its pipeline to be used by applicant.
They alleged that they were also entitled to disconnect applicant's
fixture at Lot 8 from the pipeline without breaching the provisions of section
118 (1) and (c) of the Water Act.
I pause to observe that despite the
respondents' above contentions the applicant is entitled to apply to the
Administrative Court for servitude. It
is that court which shall make a determination as to whether or not to grant
the application.
The respondents alleged that applicant
had a borehole alongside the Save River, on the eastern side of the property,
pumping 20 000 litres of water per hour, which serves its wild life needs. Further, it had a second prolific borehole
along Msaize River, on the western side of the property, also pumping 20 000
litres of water per hour. That borehole
allegedly provides water for the safari camp, the professional hunters, the
large body of employees and managers based there. Close to the first of those boreholes is a
dam to which water is pumped for animals.
Further more, the respondents
alleged that the applicant had 16 boreholes on Lot 5. In addition to that the applicant had three
kilometer frontage on the Save River which it had chosen to fence thus
eliminating the use of that large water resource for its wildlife. In the light of the above the respondents
concluded that neither humans nor any animals were in any danger.
In response to the respondents' allegations the applicant
maintained that the underground pipeline was laid down with financial
contributions of all the holders of title to the various lots in Devure Ranch
on the agreement and common understanding that all would benefit from the
pipeline. The agreement and common
understanding had subsisted for 18 years.
The suggestion that the applicant
had two prolific boreholes was not entirely correct because one of them had
salty water which is unfit for consumption.
The other one has no underground pipeline to draw water to the watering
holes for wild life and other parts of applicant's Msaize ranch. It is not true that applicant has 16
boreholes on the property. What
respondents are referring to as 16 boreholes are 16 places where underground
water has been sited but no boreholes have been drilled yet. It was therefore not correct for the
respondents to argue that the applicant had failed to disclose material facts
to the court.
The respondents complained of the
misjoinder of Mr Wilfred Pabst as a third respondent contending that he was a peregrinus. The court's jurisdiction had to be founded on
or confirmed by his arrest in terms of section 15 of the High Court Act
[Chapter 7:06]. But Mr Wilfred Pabst is
director and shareholder of Pabst Holdings (Private) Limited and Lowveld Marketing
Services (Private) Limited. He is the alter ego of companies. It, therefore, seems to me that his joinder
does not offend the provisions of section 15 of the High Court Act. In any event, no cause or matter shall be
defeated by reason of a misjoinder – see Order 13 Rule 87.
In conclusion it seems to me that
the respondents are just being difficult and unreasonable. No conceivable prejudice will be suffered by
them flowing from the granting of the order being sought.
In the result, I would confirm the
provisional order in terms of the draft on page 2.
Cheda & Partners, applicant's legal practitioners
Messrs Webb, Low & Barry
respondents' legal practitioners
