ConCourt win for govt in drawn-out Hartbeespoort Dam foreshore dispute

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The appellants wanted the court to declare them as having servitudal rights.
The appellants wanted the court to declare them as having servitudal rights.
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  • The Constitutional Court has upheld previous judgments regarding and control along the "foreshore" of the Hartbeespoort Dam.
  • The Department of Water and Sanitation says it regards this as a landmark ruling.
  • The department says the ruling recognises its rights to manage Hartbeespoort and the dam itself.

The Constitutional Court has dismissed an appeal relating to a drawn-out case regarding control of some parts of the Hartbeespoort Dam and its surrounding areas.

It upheld previous judgments by the Supreme Court of Appeal (SCA) in October 2020 and the Gauteng High Court in May 2019.

The dam is the central attraction in the Hartbeespoort area, which is a popular holiday and weekend destination.

The Department of Water and Sanitation (DWS) said in a statement on Thursday that "this landmark ruling is a turning point since it grants the department and other respondents the rights to manage Hartbeespoort, which is a tourist attraction and the dam itself, which is supplied by the Crocodile River as its main source of water".

The appeal concerned claims of servitudal rights for free access over a narrow strip of land on the eastern bank of the dam, between the waterline and the boundaries of the adjacent properties. It is commonly known as "the foreshore". The appellants were Kingsley Seale, Ontspan Beleggings, HI Frank Components and Schoemansville Oewerklub. They own properties adjacent to - or in close proximity of - this foreshore of the dam.

Seale is also a director of Ontspan and HI Frank Components. The fourth appellant, Schoemansville Oewerklub, is a voluntary association of which the majority of members are registered owners of erven in Schoemansville. 

The respondents were the DWS, the Department of Public Works, the Transvaal Yacht Club and the Registrar of Deeds (Pretoria). One of the principal purposes of the appellants' application was to limit the Transvaal Yacht Club to the use of the foreshore in front of its property.

The appellants wanted the court to declare them as having servitudal rights and to enforce their claim. The minister of water and sanitation opposed the application on behalf of the State. The Transvaal Yacht Club, which owns property adjacent to the foreshore, also opposed the application.

The SCA previously ruled that the dam was built by the government of the Union of South Africa during the early part of the previous century. Its legal successor is the national government of the Republic of South Africa, which owns the foreshore. The court found that the appellants did not show the acquisition of certain servitudes by prescription.

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