riparian owners’ contention was that to be treated as ‘navigable,’ a river had to be navigable in both directions, and in the days when the Spey was used commercially for floating timber, it was navigable only towards the sea. Baron Hume had drawn this distinction between ‘proper navigable rivers’ and rivers like the Spey; but his discussion does not show in what ways the public rights in them differed in substance.136 Indeed, the whole implication of what he says is that there was no difference. The relevant facts of the South African case, Transvaal Canoe Union v. Butgeriet,137 were not dissimilar. The plaintiff claimed that it and its members were entitled to paddle their canoes on the Crocodile River. The defendant riparian owner argued that when they paddled over her property they were trespassing (and she had taken extreme practical steps to stop them). The plaintiff maintained that the river was perennial and a res publica; the defendant claimed the river was not res publica.138 The court held that by common law the river was public, and that Roman and Roman-Dutch writers stressed importance of navigation on public rivers. The court also held that it did not matter that the river was not navigable in the sense understood by the Roman and Roman-Dutch jurists: navigability was a relative term, and the Crocodile River allowed the passage of canoes. The judge, Eloff DJP, noted that it was not really disputed that the river was perennial. Hence, at Roman law the river was public. The only real issues were therefore () was the river navigable and () if not what rights would the plaintiffs have? Much Roman and RomanDutch law was cited but in terms of the issues the great bulk of the citations is entirely irrelevant. This is true of Digest ... (Ulpian); 136Baron David Hume’s Lectures 1786-1822, 4, edit. By G. Campbell H. Paton (Edinburgh, 1955), p. 243.) 137 1986 4 SA (TPD) 207. For simplicity I am reducing the parties to one on each side. 138 It is not significant for us that by the Water Act 54 of 1956 the water in the river was public.
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