Clanwilliam Municipality v Braude

• Jurisdiction: South Africa
• Citation: 1954 (3) SA 657 (C)

Clanwilliam Municipality v Braude
1954 (3) SA 657 (C)

1954 (3) SA p657

Citation	1954 (3) SA 657 (C)
Court	Cape Provincial Division
Judge	Hall J
Heard	May 28, 1954; June 1, 1954; June 4, 1954
Judgment	June 11, 1954

Flynote : Sleutelwoorde G

Water — Irrigation furrow — 'Maintaining in good order and repair' — Meaning of — When maintaining means replacement — Words and phrases — 'Maintenance' — 'Repair'.

Headnote : Kopnota

The words 'maintenance' and 'repair' have connotations which differ in H accordance with the objects and circumstances under which they are applied.

When used in connection with an irrigation furrow the phrase 'maintaining in good order and repair' may involve the replacement of a length of furrow which has fallen into disrepair, by a new furrow when such length, small in comparison with the total length, has become useless for its purpose.

1954 (3) SA p658

Case Information

Action to recover certain expenditure incurred in connection with the upkeep, etc., of a water furrow. The facts appear from the reasons for judgment.

D. B. Oosthuizen, Q.C. (with him S. Schoeman), for the plaintiff: In the absence of definite directions as to the manner in which they are to be effected, 'repairs and maintenance' includes reconstruction or replacement of part of the existing structure with a new or other structure, even using other than the original materials: Sevenoaks, Maidstone and Tunbridge Railway Co v London, Dover and Chatham Railway B Co., 1879 (2) Ch.D. 625 at p. 634, Smith v Smith, 1914 AD 257 at p. 271; Smith v Smith, 1948 (2) SA at pp. 27, 28; Lurcott v Wakeley and Wheeler, 1911 (1) K.B. 905 at p. 924. Where time and the elements have rendered a part of the structure incapable of fulfilling its function and the only way in which it can be made capable of so doing is C by replacement by something new, such replacement falls within the meaning of repairs. See Lurcott's case, supra, at p. 914, followed in Bowman v Stanford, 1950 (2) SA 210. The only condition is that the work done should not alter the character or identity of the subject-matter; Lurcott's case, supra, at p. 914. As to the definition of 'maintenance' see Webster's Dictionary, s.v. maintenance, and Stroud, Legal Dictionary, vol. 3, pp. 1705 - 7. A

D To 'maintain in a proper state of repair' contemplates something wider than repairs per se: Bowman v Stanford, supra, at pp. 214 et seq., quoting with approval Lurcott's case, supra. In the present case the expression contemplates that everything should be done by plaintiff to enable the furrow to function efficiently, and so as to avoid undue percolation or leakage of water.

P. J. Wessels, for the defendant: The limits of the obligations depend on the intention of the parties, which must be gathered from the terms of the contract: Bowman and Another v Stanford, 1950 (2) SA 210 at p. 216. The duty to maintain connotes an undertaking to keep in the same F condition: Sarkin v Koren, 1950 (1) SA 495 at p. 499. For the meaning of 'maintain' see Stroud's Judicial Dictionary, vol. 3, p. 1706. The word cannot be stretched to cover reconstruction in whole or in part: Sharpness New Docks and Gloucester and Birmingham Navigation Company v Attorney-General, 1915 A.C. 654 at pp. 661 and 667. The G reasoning in the latter case was applied in Attorney-General for Ireland v Lagan Navigation Co., 1924 A.C. 877, and Attorney-General v Great Northern Railway Co., 1916 (2) A.C. 356. See also Manchester Corporation v Audenshaw Urban District Council and Denton U.D.C., 1928 Ch.D. 763; it is not the duty of the Court to determine what is practical or wise, but what, precisely, the liability is. E

Oosthuizen, Q.C., in reply.

Cur. adv. vult. H

Postea (June 11th).

1954 (3) SA p659

Judgment

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

1954 (3) SA p660

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...