- The farmer was losing up to 31% of its allocated water through a deteriorating irrigation furrow.
- It sought a legal right to convey water through an underground pipeline across 21 Transnet-owned properties.
- The High Court declared the farmer entitled to a water servitude and ordered Transnet to pay the legal costs.
A farmer in Calitzdorp has secured a legal right to transport its allocated irrigation water across Transnet-owned land after facing significant water losses through its existing supply route.
Judge PS van Zyl of the High Court in the Western Cape, sitting in Thembalethu, declared that Celebratio (Pty) Ltd is entitled to a praedial servitude of aqueduct across 21 properties owned by Transnet SOC Ltd. This servitude will allow the farmer to move its allocated water through an underground pipeline, rather than relying on the old dirt furrow.
The issue arose because the farmer could not receive the full benefit of its lawful water-use rights, with up to 31% of its allocation being lost before the water even reached the farm.
Farmer struggles to receive allocated water
Celebratio grows pomegranates on Farm Celebratio 107 in Calitzdorp, an area that has been hard-hit by drought. The farm has a lawful water-use entitlement that covers 55.8 hectares, with water supplied in turns through the Stompdrift-Kamanassie Water Users’ Association.
But the farmer only receives two to three water turns each year, amounting to less than 70 hours of water availability annually. Situated at the end of an open dirt furrow known as the Braksloot, Celebratio is last in line to get water.
The company told the court that the poor condition of the furrow, with overgrown vegetation and water seeping out, meant that up to 31 percent of the water was lost. The supply was also disrupted because other landowners along the furrow were behind on their water taxes, which affected the release of water by the authorities.
Celebratio argued that using an underground pipeline would prevent these losses and let it use its full allocation. The farm said this alternative route was necessary to make its water entitlement meaningful.
Dispute with Transnet over water route
The farm approached the court for a praedial servitude of aqueduct under the National Water Act 36 of 1998. The proposed pipeline would run about 4.5km across 21 Transnet-owned properties, following the boundary of a disused railway reserve.
The pipeline would be buried underground at a depth of about 900mm and would have a diameter of 315mm. The company noted that the railway had not been used for many decades, with the tracks removed in several places for roads and other developments.
Transnet opposed the application, raising questions about the farmer’s water-use rights and whether the farmer had met all statutory notice requirements. Transnet also pointed out that the railway could potentially be reinstated and argued that the farm should have applied for a wayleave, rather than a servitude through the courts.
Judge examines farmer’s water entitlement
Judge Van Zyl found that Celebratio had shown enough evidence of its lawful water-use rights, supported by documents from the Breede-Gouritz Catchment Management Agency and confirmation from the SKWUA.
The judge explained that Section 127 of the National Water Act allows someone who is authorised to use water to claim a servitude if it is needed to make use of that right. This includes the right to claim a servitude of aqueduct to convey water across someone else’s land.
The judge rejected Transnet’s argument that the farmer should have relied on the water users’ association to clean the furrow or asked the Minister to intervene. While the association has duties relating to maintaining the watercourse, these alternatives would not have solved the farmer’s problem immediately.
Judge Van Zyl pointed out that Celebratio had no control over when, or even if, the association or Minister would act. Legal action against them would also take time, with no guaranteed result.
The judge emphasised that the farmer had the right not just to access water, but to make “the effective use of its water entitlement.” The poor condition of the furrow and the resulting losses undermined that right, especially in an area where irrigation water is essential for farming.
The court also dismissed Transnet’s objections regarding statutory notice requirements. Judge Van Zyl found that Celebratio had substantially complied with Schedule 2 of the Act, having identified the affected properties and provided maps showing the planned pipeline route.
Wayleave would not provide permanent protection
Transnet argued that a wayleave application could have allowed Celebratio to access its properties and install the pipeline. However, Judge Van Zyl distinguished between a wayleave and a servitude, noting that they do not offer the same legal protection.
A wayleave is an agreement that lets someone use another person’s land under certain conditions, but it does not bind future owners. A servitude, on the other hand, provides a lasting right that benefits one property over another.
The judge found it would be unreasonable to expect Celebratio to spend money installing a pipeline without securing a permanent legal right to use it. The National Water Act did not require the farmer to first seek a wayleave before turning to the courts for a statutory servitude.
The judgment also considered Transnet’s concerns about possibly reinstating the railway. However, the line had been unused for decades, with parts of the track removed or replaced by roads and other infrastructure. Transnet had not shown any concrete plans to restore the railway.
Judge Van Zyl also concluded that Transnet had not shown it would suffer any “real or substantial prejudice” because of the proposed pipeline. The technical details, such as the exact route, depth and diameter, could be worked out between the parties during the construction phase.
Transnet ordered to pay legal costs
In an order made on 11 November 2026, Judge Van Zyl declared that Celebratio is entitled to a praedial servitude of an aqueduct about 3m wide and 4.5km long. The servitude covers 20 portions of Farm 78, known as Farm Langverwagt, and Portion 45 of Farm 62, called Farm Waterkloof, both in the Calitzdorp district. These properties are registered in Transnet’s name.
The court granted the declaratory relief under Sections 127(1) and 126(b) of the National Water Act, recognising the farmer’s right to move its allocated water across the affected land. Transnet was ordered to pay the legal costs of the application, including costs that had been reserved from 23 April 2026. Counsel’s fees are to be taxed on Scale B.
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