Clanwilliam Municipality v Braude

• Jurisdiction: South Africa
• Judge: Hall J
• Judgment Date: 11 June 1954
• Citation: 1954 (3) SA 657 (C)
• Court: Cape Provincial Division

Hall, J.:

The plaintiff is the Municipality of Clanwilliam and the defendant is the owner of a farm property situated upon the outskirts of the village of Clanwilliam known as 'The Valley'. In 1921 the defendant's predecessors in title entered into a written agreement with the plaintiff regarding the joint use of a furrow or canal by means of A which water from the Jan Disselsrivier was conveyed from an intake in the river bed to the Village and The Valley. In terms of a further written agreement entered into between the same parties in 1922, provision was made regarding the sharing of the cost of maintenance of this furrow. It is common cause that these two written agreements are binding upon the defendant by virtue of his being a successor in title B of the farm, 'The Valley'. In the present case the plaintiff seeks to recover from the defendant the sum of £362 15s. 0d., which it alleges represents a half share of the cost of the maintenance of and repairs effected to the furrow during the year 1952. The defendant in his plea denied any liability for this amount but pleaded that he had tendered an C amount of £61 4s. 4d. prior to the issue of summons. At a later stage of the proceedings it was agreed between the parties that the expenditure incurred by the plaintiff in connection with the furrow was to be regarded as (a) the sum of £150 0s. 0d. in connection with upkeep of, and the laying of certain pipes near the intake of, the furrow, and (b) the sum of £575 10s. 1d. as the cost of laying a new pipeline in the D vicinity of the village service reservoir. The defendant's tender of £61 4s. 4d. was raised to £75 0s. 0d. on the condition that the latter sum should be regarded as tendered prior to the commencement of the action. It was subsequently conceded by Mr. Wessels, who appeared for the defendant, that, although the plea contained a denial of liability E the £75 0s. 0d. could be regarded as tendered in respect of the half share of the sum of £150 0s. 0d. mentioned above. The issue between the parties thus became simplified and it now turns upon the defendant's liability to pay one half of the cost of laying pipes for a distance of approximately 300 yards immediately upstream of the service reservoir.

F The defendant's liability to contribute to expenditure in connection with the joint furrow depends upon the construction of the written agreements entered into between his predecessors in title and the plaintiff in 1921 and 1922, which are annexed to the plaintiff's declaration marked 'annexures A and B'. In order that the reason for the dispute may plainly appear, it is essential to set out those clauses of G the agreements which have a bearing upon the question of the defendant's liability. Such clauses of annexure A, i.e. the 1921 agreement, are as follows:

'1.

The said Municipality agrees 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 H 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 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

Hall J

Valley immediately above the Mill. The work to be done to the 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.

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.'

A The agreement then goes on to make an apportionment of the whole flow of the furrow between the two parties to it.

The second agreement made in 1922 (annexure B) gave the defendant's predecessors in title the right to make a new furrow over Municipal land B from a point near the reservoir at a higher level than the existing one, and the only stipulation in that agreement which is relevant to the issue in the present case is clause 5 which is as follows:

'5.

The said owners 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.'

C The plaintiff contends that the pipeline was laid for the purpose of maintaining the furrow in a proper state of repair in accordance with clause 5 of annexure B. Defendant's contention is that these pipes do not constitute a repair to the furrow, but that they represent the construction of an entirely new work and that, if this is repair work, it is not the kind of work which was within the contemplation of the D parties as disclosed by annexures A and B, and thus in either event, no obligation flows from these agreements in respect of which the defendant could be held liable.

I inspected the intake of the furrow and the furrow itself for a distance of about 300 yards in the direction of Clanwilliam and I also E inspected the last 300 yards of the furrow immediately before it reaches the service reservoir. At the request of both parties certain notes were made during the course of the inspection and were incorporated in the record. Evidence was given on the plaintiff's behalf by two civil engineers, two building contractors and several members or former members of the Municipal Council and for the defendant by one civil engineer, and to this evidence reference will be made later.

F The service reservoir is situated on the edge of a low ridge which overlooks the valley of the Jan Disselsrivier and the village of Clanwilliam and, at the reservoir, the joint furrow, which brings the water from the intake some three and three quarter miles away, terminates. The two furrows which supply the erfholders of the village G and the owners of 'The Valley' with irrigation water diverge at this spot. In the immediate vicinity of the reservoir and for approximately 300 yards upstream of it three artificially constructed channels for the conveyance of water exist side by side. The lowest one is an earthen or ground furrow and it was constructed on the edge of the crest of the ridge overlooking the valley. The highest one is made parallel to it...