THE HARTIES FORESHORE JUDGEMENT: A BRIEF SUMMARY

There was a super important court ruling on 10 May 2019 involving the Harties dam foreshores. Some say the ruling is a calamity, but others feel the judgement is a step towards order from the chaos reigning on our foreshores.

On 8 Sept 2017 Jack Seale registered a case against the Dept. of Water Affairs (DWS) and other state departments in response to the imminent lease agreements to be entered into by DWS. Schoemansville Oewer Club (SOC) was also drawn into the case as applicant and Transvaal Yacht  Club (TYC) as respondent.

The application was for an old right of access negotiated by the late Johan Schoeman, son of General Hendrik Schoeman as part of the 1918 sales contract and incorporated into the 1922 Notorial deed. This deed promised a servitude under condition that the sale of all dam properties be completed. This right entailed access to the dam at 3 positions for Schoeman and his assigns for purposes of fishing and boating. Schoeman signed over this right to his sons Lincoln and Tolstoy, while they in turn signed it over to Jack Seale. Schoeman furthermore requested that these access rights be incorporated into the title deeds of the new townships that he established, namely Schoemansville and Meerhof. In terms of the Crown Grant Schoeman retained a section of the farm (now the Zoo), while the remaining Schoemansville foreshore were given for right of use to TYC, private boating and a section for use by the Schoemansville owners.

In addition to registering of an access servitude, the applicants also sought prohibition of DWS to enter into lease agreements without the consent of the applicants as well as a directive that DWS must consult with the applicants before granting boating rights on the dam.

Justice Davies gave a ruling in favour of the respondents (DWS and TYC) against the applicants (Jack Seale and SOC) with a cost order.

The reasons for the judgement is shortly: a) The original contract lapsed and can not be enforced. A reasonable period has transpired without purposeful non-adherence to the conditions. b) The rights accorded to Schoeman was in any case personal and not praedial (connected to the properties in question). These rights lapsed with Schoeman’s death irrespective of whether he signed it over to other parties. c) Any argument about obtaining of rights due to continuous use longer than 30 years fails due to the Prescription act of 1969 preventing rights so obtained on state property. Curiously, the ruling indicates that no rights were sought by the applicants based on the Crown Grant in which a section of the Scoemansville foreshore is allocated for use by Schoemansville stand owners.

This ruling brings some clarity to uncertainties about ownership rights raging on for 2 decades now on our foreshores. This may pave the way for DWS to start giving out lease contracts and thus ending the situation where foreshores are currently occupied without documentation. One might say that the current situation is chaotic on a medieval scale with a dire need for clear resolutions. As residents we should now demand of government and DWS that the envisaged Dam Management Plan be put into operation and that a capable Dam Management Committee be put into place to prevent the situation from sliding into chaos again.