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Chapter 13: ACCESS TO AND RIGHTS OVER LAND

Chapter 13 Part 1: Entry and inspection

Part 1 of this Chapter allows authorised persons to enter and inspect property for a number of purposes associated with implementing this Act. The rights of property owners are protected in that only authorised persons may enter and inspect property; authorised persons must carry a certificate of authorisation and must produce that certificate on request; in certain circumstances notice of entry must be given and the consent of the person owning or occupying the property must be obtained before entry; and in certain circumstances a warrant must be obtained prior to entry.

124.: Appointment of authorised persons

124.(1): The Minister or a water management institution may, in writing, appoint any suitable person as an authorised person to perform the functions contemplated in section 125(1), (2) and (3).
124.(2): An authorised person must be provided with a certificate of appointment signed by or on behalf of the Minister or a water management institution in which the nature of the authorised person's functions is described.

125.: Powers and duties of authorised persons

125.(1): An authorised person may, at any reasonable time and without prior notice, enter or cross a property with the necessary persons, vehicles, equipment and material in order to carry out routine inspections of the use of water under any authorisation.
125.(2): An authorised person may enter a property with the necessary persons, vehicles, equipment and material -
125.(2)(a): after giving reasonable notice to the owner or occupier of the property, which notice must state the purpose of the proposed entry; and
125.(2)(b): after obtaining the consent of the owner or occupier of that property, in order to -
125.(2)(b)(i): clean, repair, maintain, remove or demolish any government waterwork operated by any water management institution;
125.(2)(b)(ii): undertake any work necessary for cleaning, clearing, stabilising and repairing the water resource and protecting the resource quality;
125.(2)(b)(iii): .establish the suitability of any water resource or site for constructing a waterwork;
125.(2)(b)(iv): .undertake any work necessary to comply with an obligation imposed on any person under this Act, where that person has failed to fulfil that obligation;
125.(2)(b)(v): .erect any structure and to install and operate any equipment on a temporary basis for monitoring and gathering information on water resources; or
125.(2)(b)(vi): .bring heavy equipment on to a property or occupy a property for any length of time.
125.(3): An authorised person may, at any reasonable time and without prior notice, on the authority of a warrant, enter a property with the necessary persons, vehicles, equipment and material, and perform any action necessary to -
125.(3)(a): investigate whether this Act, any condition attached to any authorised water use by or under this Act or any notice or directive is being contravened;
125.(3)(b): investigate whether any information supplied in connection with the use of water is accurate; or
125.(3)(c): carry out any of the activities referred to in subsection (2) where the consent of the owner or occupier of that property has been withheld.
125.(4): .A warrant referred to in subsection (3) must be issued by a judge or a magistrate who has jurisdiction in the area where the property in question is situated, and must only be issued if it appears from information obtained on oath that -
125.(4)(a): there are reasonable grounds for believing that this Act, any condition attached to any authorised water use by or under this Act or any notice or directive, is being contravened;
125.(4)(b): there are reasonable grounds for believing that any information supplied in connection with the use of water is inaccurate; or
125.(4)(c): it is necessary to carry out an activity mentioned in subsection (2) and access to that property has been denied.
125.(5): If a warrant is likely to be issued if applied for but the delay involved in obtaining a warrant is likely to defeat the object of an inspection in terms of subsection (3)(a) or (b), an authorised person may enter a property without a warrant.
125.(6): An authorised person entering property in terms of this section must, at the request of any person on that property, identify himself or herself and present a certificate of appointment contemplated in section 124(2).
125.(7): Notwithstanding any provision of this section an authorised person may not, under any circumstances, enter a dwelling without the consent of the occupier or without a warrant authorising entry.

Chapter 13 Part 2: Servitudes

Part 2 deals with servitudes. A servitude is a right that a person has over property belonging to another person. This Part allows a person who is authorised to use water under the Act to claim a servitude over another person's land where this is necessary to make that water use effective. For example it might be necessary to lead water over another person's land to take it from the source to the authorised water user's land, and a servitude would be necessary to do this. A servitude cannot be claimed unless the claimant is authorised to use water, and if the authorisation is withdrawn or otherwise terminated, the servitude will lapse. Servitudes are acquired by agreement between the authorised water user and the relevant land owner, either according to existing procedures laid down in the Deeds Registries Act or by way of an agreement which is made an order of court. Procedural details regarding the acquisition of servitudes and their registration are not set out in this Part but are contained in Schedule 2.

126.: Definitions

In this Chapter -
126.(a): ``servitude of abutment'' means the right to occupy, by means of a waterwork, the bed or banks of a stream or adjacent land belonging to another;
126.(b): ``servitude of aqueduct'' means the right to occupy land belonging to another by means of a waterwork for abstracting or leading water; and
126.(c): ``servitude of submersion'' means the right to occupy land belonging to another by submerging it under water.

127.: Acquisition of servitudes

127.(1): A person who is authorised under this Act to use water may -
127.(1)(a): claim a servitude of -
127.(1)(a)(i): abutment;
127.(1)(a)(ii): aqueduct; or
127.(1)(a)(iii): submersion; or
127.(1)(b): obtain an amendment to any existing servitude of abutment, aqueduct or submersion, to the extent that this is necessary to give effect to that authorisation.
127.(2): The servitude claimed under subsection (1)(a) may be -
127.(2)(a): a personal servitude in favour of the claimant; or
127.(2)(b): a praedial servitude in favour of the claimant in the claimant's capacity as owner of property on which the claimant may use the water.
127.(3): A servitude under this Chapter may also be claimed in respect of an existing waterwork.
127.(4): A person who intends to claim a servitude under this section must follow the procedure set out in Schedule 2.

128.: Rights and duties of servitude holders and landowners

128.(1): A holder of a servitude contemplated in this Chapter has a reasonable right of access to the land which is subject to the servitude for the purpose of constructing, altering, replacing, inspecting, maintaining, repairing or operating the relevant waterwork, or for any other purpose necessary for the effective enjoyment of that servitude.
128.(2): The holder of a servitude contemplated in this Chapter may, in a reasonable manner and subject to any other applicable law -
128.(2)(a): take from the land subject to the servitude, any material or substance reasonably required for constructing, altering, replacing, maintaining or repairing any waterwork or part of a waterwork in respect of which the servitude has been acquired;
128.(2)(b): remove and use vegetation or any other obstacle which is on the land subject to the servitude and which is detrimental to the reasonable enjoyment of the servitude;
128.(2)(c): deposit on the land subject to the servitude any material or substance excavated or removed from the waterwork in the reasonable exercise of the servitude;
128.(2)(d): occupy, during the period of construction of the waterwork in respect of which the servitude has been acquired, as much of the land subject to the servitude as may reasonably be required for -
128.(2)(d)(i): constructing camps or roads;
128.(2)(d)(ii): constructing houses, reservoirs or other buildings or structures; or
128.(2)(d)(iii): installing machinery or equipment, necessary for the construction of the waterwork;
128.(2)(e): occupy, for the duration of the servitude, as much of the land subject to the servitude as is reasonably required for -
128.(2)(e)(i): accommodating people;
128.(2)(e)(ii): workshops; or
128.(2)(e)(iii): storage purposes, to the extent that this is necessary for the control, operation and maintenance of the relevant waterwork.
128.(3): A holder of a servitude contemplated in this Chapter must, when requested in writing by the owner of the land subject to the servitude, at the holder's cost -
128.(3)(a): maintain the servitude area;
128.(3)(b): repair and maintain waterworks relating to the servitude; and
128.(3)(c): repair and maintain access roads associated with the servitude.
128.(4): If the holder of a servitude fails to carry out the requested work, the owner of the land may arrange for the necessary work to be done and may recover any reasonable cost incurred from the servitude holder.
128.(5): On termination of a servitude, the holder of the servitude must rehabilitate the land subject to the servitude to the extent that this is reasonably possible.

129.: Procedure for acquisition and amendment of servitudes

129.(1): A servitude contemplated in this Chapter may be acquired or an amendment or cancellation of a servitude obtained by -
129.(1)(a): executing and registering an applicable deed in terms of the Deeds Registries Act, 1937 (Act No. 47 of 1937); or
129.(1)(b): by means of an order of a High Court.
129.(2): A person claiming a servitude or an amendment of a servitude under this Chapter may, on reasonable notice to the landowner -
129.(2)(a): enter;
129.(2)(b): make any investigation; and
129.(2)(c): undertake any operation, on the land which will be subject to the servitude, where this is reasonable in the circumstances and necessary for determining the nature and extent of the servitude and for complying with item 3 of Schedule 2.
129.(3): A person acting under subsection (2) must -
129.(3)(a): cause as little damage as possible to the land; and
129.(3)(b): where any damage is caused -
129.(3)(b)(i): repair the damage where possible; or
129.(3)(b)(ii): pay compensation to the landowner in an agreed amount or an amount determined by a competent court.
129.(4): An owner of the land against which a servitude contemplated in this Chapter is claimed, may claim to share in the use of any proposed waterwork relating to the servitude if -
129.(4)(a): the owner of the land is authorised to use water from a specific water resource;
129.(4)(b): the use of the waterwork is compatible with the authorised water use; and
129.(4)(c): the owner of the land agrees to be responsible for a proportionate share of the cost of constructing, repairing and maintaining the waterwork.
129.(5): A claim to share in the use of a waterwork under subsection (4) must be dealt with -
129.(5)(a): in the agreement between the parties; or
129.(5)(b): in a High Court order contemplated in section 130.

130.: Powers of High Court in respect of claim for servitude

On hearing a claim for a servitude or for an amendment to a servitude in terms of this Chapter, a High Court may -
130.(a): award the claim with or without modifications, on such terms as it considers just;
130.(b): award compensation or refuse to award compensation;
130.(c): determine whether a proportionate amount of compensation should be paid to the holder of a right of lease, mortgage, usufruct or similar right over the property, and order that such compensation be paid; or
130.(d): dismiss the claim.

131.: Compensation payable for granting of servitudes

131.(1): In determining just and equitable compensation a High Court must take into account all relevant factors including, in addition to the matters contemplated in section 25 of the Constitution -
131.(1)(a): the nature of the servitude or amendment, including the nature and function of the waterwork relating to the servitude or amendment;
131.(1)(b): whether any existing waterwork will be used to give effect to the servitude;
131.(1)(c): the probable duration of the servitude;
131.(1)(d): the extent of the deprivation of use of the land likely to be suffered as a result of the servitude or amendment;
131.(1)(e): the rental value of the land affected by the servitude or amendment;
131.(1)(f): the nature and extent of the actual inconvenience or loss likely to be suffered as a result of the exercise of the rights under the servitude or amendment;
131.(1)(g): the extent to which the land can reasonably be rehabilitated on termination of the servitude;
131.(1)(h): any advantage that the landowner, or other person with a compensatable interest in the land subject to the servitude, is likely to derive as a result of the servitude or amendment; and
131.(1)(i): the public interest served by the waterwork relating to the servitude or amendment.
131.(2): A High Court may determine the time and manner of payment of the compensation.

132.: Noting of servitude and amendment by endorsement against title deed

132.(1): The acquisition, amendment or cancellation of a servitude by virtue of an order of the High Court takes effect when the order is noted in terms of the Deeds Registries Act, 1937, (Act No. 47 of 1937).
132.(2): Nothing in this section prevents a person from electing to register the acquisition, amendment or cancellation of a servitude in accordance with the Deeds Registries Act, 1937 (Act No. 47 of 1937).

133.: Cancellation of servitude

An owner of land subject to a servitude of abutment, aqueduct or submersion may -
133.(a): if the relevant authorisation associated with the servitude is terminated;
133.(b): if the rights and obligations in respect of the servitude have not been exercised on the land subject to the servitude for a continuous period of three years; or
133.(c): for any other lawful reason, apply to a High Court for the cancellation of that servitude.

134.: Joint waterwork involving servitude

Subject to Chapter 4, two or more persons who are authorised to use water may agree to -
134.(a): construct a joint waterwork; and
134.(b): create a servitude associated with that waterwork, to give effect to their authorised water use.

Chapter 13 Part 3: Waterworks and personal servitudes

Part 3 deals with ownership and restoration relating to waterworks placed on the land of another, and creates an exception to the general common law rule that personal servitudes are not transferable from the holder to another person. It allows transfers of personal servitudes that are held by the State and water management institutions.

135.: Ownership of waterworks on land belonging to another

135.(1): A water management institution (including the State) -
135.(1)(a): retains ownership of a waterwork placed in good faith on land belonging to another;
135.(1)(b): may remove such a waterwork from the land; and
135.(1)(c): may transfer the rights held in respect of improvement on such land to another person or authority.
135.(2): When a waterwork is removed under subsection (1)(b), the owner of the property -
135.(2)(a): may require the Minister or the water management institution concerned to restore, as far as possible, any physical damage to the land caused by the removal; and
135.(2)(b): has no other claim against the Minister or the water management institution concerned.
135.(3): The rights of the State or a water management institution in respect of improvements on property not owned by the State or the institution may be transferred to another person or authority.

136.: Transfer of personal servitudes

136.(1): Despite any law to the contrary, a personal servitude, whether registered or not, held by the Minister or a water management institution may be transferred -
136.(1)(a): from the Minister to a water management institution; or
136.(1)(b): from a water management institution to the Minister or to another water management institution.
136.(2): The relevant Registrar of Deeds must register a notarially executed deed of cession to transfer a registered personal servitude in terms of subsection (1).