Braude v Clanwilliam Municipality

• Jurisdiction: South Africa
• Citation: 1954 (4) SA 669 (A)

Braude v Clanwilliam Municipality
1954 (4) SA 669 (A)

1954 (4) SA p669

Citation	1954 (4) SA 669 (A)
Court	Appellate Division
Judge	Centlivres CJ, Greenberg JA and Hoexter JA
Heard	September 24, 1954
Judgment	September 28, 1954

Flynote : Sleutelwoorde C

Water — Maintenance of a furrow — What constitutes — Section of furrow replaced by a pipe-line to prevent undue leakage — Such not maintenance in good order and repair — Agreement contemplating D a grouting of cement and stones to preclude leakage — Words and phrases — 'Maintenance' — What constitutes.

Headnote : Kopnota

Appellant, the owner of a certain farm, had agreed with respondent Municipality to bear half the cost of maintaining a particular furrow, after completion by respondent of all necessary construction work in E terms of an earlier agreement. In 1952 the Municipality, 'owing to an undue leakage of water', had replaced a section of the furrow with a pipe-line and successfully sued the appellant for half of the expenditure thereon. In an appeal, it appeared that under the earlier agreement the obligation rested on the Municipality to construct the furrow in such a manner as to preclude any undue percolation or leakage of water 'to which end a grouting of cement and stones' was to be given wherever necessary.

Held, as the expenditure was not maintenance, that the respondent was F not entitled to succeed in its claim.

The decision in the Cape Provincial Division in Clanwilliam Municipality v Braude, reversed.

Case Information

Appeal from a decision in the Cape Provincial Division (HALL, J.). The facts appear from the judgment of CENTLIVRES, C.J. G

P. J. Wessels, for the appellant: The onus was on respondent to prove that the work undertaken, viz. the laying of pipes, fell within the ambit of clause 5 of the contract between the parties. The meaning given to this clause by the Court a quo is not justified by the language employed. As to the correct approach to the task of interpretation, see Worman v Hughes and Others, 1948 (3) SA at p. 505. The words 'the H cost of maintaining the new furrow . . . in a proper state of repair' in clause 5 cannot be construed to include the substitution of a pipe line for a section of the furrow originally constructed in pursuance of the parties' agreement of August 4th, 1921. An obligation to maintain in a proper state of repair connotes an undertaking

1954 (4) SA p670

to keep in the same condition; see Sarkin v Koren, 1950 (1) SA at p. 499; Sharpness New Docks and Gloucester and Birmingham Navigation Co v Attorney-General, 1915 A.C. at pp. 661, 667; Attorney-General for Ireland v Lagan Navigation Co., 1924 A.C. 877; Attorney-General v. A Great Northern Railway Co., 1916 (2) A.C. 356; Manchester Corporation v Audenshaw Urban District Council and Denton U.D.C., 1928 Ch. 763; Pembery v Lamdin, 1940 (2) A.E.R. at pp. 437 - 438; Stroud, Judicial Dictionary (vol. 3, p. 1706, s.v. 'Maintain').

D. B. Oosthuizen, Q.C., for the respondent: In terms of the parties' B agreement, respondents' primary duty in maintaining the furrow in a proper state of repair was to keep the furrow in such a condition that it would be capable of fulfilling its function in terms of the agreement. It discharged this duty in the most effective way in which it could be done in the circumstances, to ensure a regular supply of water C to both parties. The most effective way of rendering the furrow capable of carrying the requisite quantity of water and to preclude undue percolation or leakage, was to lay pipes. It was agreed on all sides that the cost of maintaining and repairing pipes would be considerably less than in the case of an open furrow. On the evidence, therefore, respondent has merely carried out his contractual obligations D in the only manner possible in the circumstances and it has done this without in any way increasing the ambit of appellant's obligations. The work executed by respondent falls within the concept of repairs and maintenance. In the absence of definite directions as to the manner in which and the materials with which repairs and maintenance must be E effected, replacing, rebuilding, or reconstructing part of an existing structure or thing with a new or other structure or thing, and even using other than the original materials, constitute repairs to and maintenance of such existing thing; see Seven Oaks, Maidstone and Tunbridge Railway Co v London, Chatham and Dover Railway Co., 1879 (2) Ch. 625; Smith and Another v Smith, 1914 AD at p. 271; Smith v. F Smith, 1948 (2) SA at pp. 27 - 8. The last-mentioned case is distinguishable in that, in that case, additional and entirely new works were constructed. The respondent did not increase the ambit of appellant's obligations; see Smith's case, 1948 A.D., supra. Restoration by renewal or replacement of subsidiary parts of a whole falls within G the meaning of repairs, whether it be substantial repairs or repairs of a structural nature or not; see Lurcott v Wakely and Wheeler, 1911 (1) K.B. at p. 924. Where time and the elements have rendered a part of the subject matter incapable of fulfilling its function and the only way it can be rendered capable of fulfilling its function is to replace it by something new, such...