- The High Court dismissed Menlo Park High School’s attempt to appeal the decision that safeguards the neighbours’ access to the borehole.
- The dispute focused on a registered servitude that gives the neighbours the right to draw water from the borehole and to access its pumping equipment.
- The school governing body has been ordered to pay the costs of the failed appeal on Scale C.
The neighbours of Menlo Park High School will keep their right to draw water from a borehole on the school’s property after the High Court rejected the school governing body’s effort to challenge an earlier ruling.
The court found there was no reasonable prospect of a successful appeal and no compelling reason for another court to reconsider the dispute.
Dispute over borehole access
The dispute involves a registered servitude that gives two neighbouring property owners, Bernard Theunis Botha and Leonore Botha, the right to draw water from a borehole located on the school’s property.
The neighbours took the matter to the High Court after a disagreement with Die Hoërskool Menlopark over access to the borehole, its pump, and the pipeline that supplies water to their property. They asked the court for an order to restore their access and to prevent the school from interfering with their water supply.
The school responded with a counter-application, asking the court to cancel the servitude under the National Water Act. As an alternative, it wanted the court to regulate and restrict access to the borehole.
The original application succeeded, and the court granted protection against interference with the neighbours’ water rights while also regulating access to the borehole. After Botha died, his executor, Michiel Coenraad Botha, was named as the first applicant in his place.
School challenges the ruling
The school governing body later applied for permission to appeal, arguing that the original judgment had several errors relating to the interpretation of the servitude, municipal water by-laws, and the neighbours’ rights.
It also disputed the finding that more drilling by the school could affect the amount of water available to the neighbouring properties. However, Acting Judge LG Kilmartin found no merit in these arguments.
Regarding the issue of more drilling, the court considered evidence given by Dr Roger Diamond from the University of Pretoria. He found that further drilling could have a serious negative effect on existing boreholes.
The school did not provide any evidence to challenge his findings. Judge Kilmartin said the registered servitude gave the neighbours a right that can be enforced, and the school had to make sure its actions did not undermine that right.
The court also rejected the governing body’s argument that the original judgment had incorrectly interpreted the neighbours’ access rights. The court explained that the order did not give the neighbours unlimited access, but rather allowed for reasonable access to the borehole and pumping equipment.
No grounds for another appeal
The school also argued that the neighbours had not paid for the water supplied through the servitude. However, correspondence going back to 1977 showed that the school had acknowledged the neighbours’ rights over many years. There had never been any demand for payment during that time.
Judge Kilmartin pointed out that the school had not brought a claim for any alleged outstanding payments. The court repeated that an application for leave to appeal requires more than just the possibility that another court might reach a different conclusion.
Quoting the Supreme Court of Appeal’s decision in MEC Health, Eastern Cape v Mkhitha, the court said that someone applying for leave to appeal must show there is a “reasonable prospect or realistic chance of success”.
The judge concluded that the governing body had not shown a reasonable prospect of success or any compelling reason for an appeal to be heard. The court also found that the dispute was about the specific rights of the parties involved and did not raise an issue of broader public importance.
The application for leave to appeal was dismissed, and the school governing body was ordered to pay the costs on Scale C.
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