Braude v Clanwilliam Municipality

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Greenberg JA and Hoexter JA
• Judgment Date: 28 September 1954
• Citation: 1954 (4) SA 669 (A)
• Hearing Date: 24 September 1954
• Court: Appellate Division

Centlivres, C.J.:

The appellant, to whom I shall refer as the defendant, C is the owner of a farm called 'The Valley' which adjoins the municipal area of the town of Clanwilliam. Prior to 1921 there was a furrow which conveyed water from the Jan Disselsrivier to the town of Clanwilliam and 'The Valley'. On August 4th, 1921, a notarial contract was entered into between the then owners of 'The Valley' and the Municipality of D Clanwilliam which became binding on the defendant as successor-in-title of 'The Valley'. Under this agreement the Municipality undertook to construct a new furrow for the purpose of taking water out of the Jan Disselsrivier. This new furrow was to discharge its water into the old furrow in the vicinity of the town of Clanwilliam. The relevant clauses of the agreement were as follows:

E '1. The said Municipality agreed to complete the relaying of the furrow - already partly constructed - along the line level and the course indicated by Engineer Scott, and to make the furrow capable of carrying a discharge of not less than 31/4 cubic feet per second.

2. Such furrow shall be constructed in an efficient and workmanlike way in such a manner as to preclude any undue percolation or leakage of water, to which end a grouting of cement and stones is to be given F wherever necessary.

3. The said Municipality further agrees to repair, widen and grout out with cement and stones where necessary the old furrow from the point where the water from the new furrow is discharged into it up to a point on The Valley immediately above the Mill. The work to be done to said section of the old furrow is to be such as to preclude any serious percolation or leakage of water, and the capacity of this section of the old furrow is to be the same as that of the said new furrow.

G 5. The owners of The Valley shall pay to the said Municipality the sum of £550 (five hundred and fifty pounds) as a contribution - of which amount they have already paid the sum of £200 (two hundred pounds).

6. The said Municipality agrees to maintain the intake of the new furrow and the new furrow itself and the section of the old furrow referred to in para. (3) hereof in good order and repair, and to clean out and repair same whenever necessary.'

H In 1922 a further agreement was entered into between the owners of 'The Valley' and the Municipality. Clause 5 of that agreement was as follows:

'5. The said owners (i.e. of 'The Valley) shall bear half the cost of maintaining the new furrow after completion of all necessary construction work, referred to in the agreement of the 4th August, 1921, in a proper state of repair.'

Centlivres CJ

In pursuance of the agreement of 1921 the Municipality constructed the new furrow which was approximately 19,400 feet in length. The new furrow was completed during the year 1922. Some five or six years later the Municipality constructed a cement furrow which led out of the new A furrow. The cement furrow was approximately 900 feet in length and replaced the final stage of the new furrow. It does not appear from the evidence...