The Supreme Court of Appeal in Bloemfontein. File picture: African News Agency (ANA)
The Supreme Court of Appeal in Bloemfontein. File picture: African News Agency (ANA)

Appeal court rules in favour of borehole firm after 8-year battle with Cape wine estate

By Francesca Villette Time of article published Dec 3, 2019

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Cape Town – The Supreme Court of Appeal (SCA) ruled in favour of a borehole company which went unpaid for eight years by Lourensford Wine Estate.

The Somerset West estate had argued the “measly” 1 600 litres per hour from the borehole was far less than the yield of 6 000 to 9 000 litres of water it deemed sufficient.

Promech Boreholes had in 2011 quoted Lourensford Fruit Company to drill a borehole on its farm, Lourensford Wine Estate, and in the process Promech’s Mike Ness spoke with the farm’s then environmental affairs manager, Johan West, and told him that he was prepared to drill on the basis of “no water no pay”.

Water did come from the drilling, but the estate took issue with the yield.

SCA Judge Lorimer Leach’s judgment noted that Lourensford’s position on going to trial was “somewhat confusing”.

“First, in its plea, after alleging that the parties had agreed that the appellant would not be paid unless sufficient water was found, it further alleged that it had been agreed that 6 000 to 9 000 litres per hour would be sufficient water, and that the capacity of the borehole was a ‘measly’ 1 600 litres per hour which did not qualify as sufficient water.

"The respondent’s case thus morphed into a contention that the appellant had guaranteed to provide a minimum water supply of 10 000 litres and that, as it had not done so, the respondent was excused from paying any sum at all,” the judgment read.

However, according to documents contained in court papers there was no guarantee of the yield for the borehole.

“What makes this all the more unfortunate is the fact already mentioned that the capacity of the borehole the appellant drilled was probably sufficient to supply the 80 or so labourers’ cottages on the farm, which the respondent wished it to do. 

"The entire trial was thus, to adopt Shakespeare’s famous description, ‘much ado about nothing’,” the judgment read.

Ness welcomed the SCA's finding and said he was now finalising payment instructions with his legal representative. 

The initial cost of the quote was around R98 000 and lawyer's bills amounted to nearly half a million rand, Ness said.

The case initially went to the regional court, before going to the Western Cape High Court, where Ness lost.

“It’s been eight years. This is a fantastic outcome from the justice system. I was wronged, and pursued this case until now,” Ness said.

Cape Times

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