Mutual Construction Co (Tvl) (Pty) Ltd v Komati Dam Joint Venture

• Jurisdiction: South Africa
• Citation: 2009 (1) SA 464 (SCA)

Mutual Construction Co (Tvl) (Pty) Ltd v Komati Dam Joint Venture
2009 (1) SA 464 (SCA)

2009 (1) SA p464

Citation	2009 (1) SA 464 (SCA)
Case No	466/07
Court	Supreme Court of Appeal
Judge	Scott JA, Cameron JA, Lewis JA, Leach AJA and Mhlantla AJA
Heard	September 4, 2008
Judgment	September 23, 2008
Counsel	R Stockwell SC for the appellant.; DA Smith SC (with MT Shepherd) for the respondent.

Flynote : Sleutelwoorde F

G Letting and hiring — Lease of movables — Duties of lessee — To return article in original condition, fair wear and tear excluded — If article damaged, then up to lessee to prove that damage not due to own negligence or that of person under his control for whose acts he was liable — Lessor supplying equipment and services of operator — Equipment damaged as result of operator's negligence while under control of lessee — Issue of liability to be dealt H with with reference to agreement, not principles of vicarious liability — Agreement viewing operator's negligence as that of lessee — Lessee liable.

Headnote : Kopnota

The parties entered into an agreement in terms of which the appellant let a truck to the respondent, together with the services of an operator. As a result of I the negligence of the operator whilst operating the truck at the respondent's construction site, the truck was involved in an accident and was extensively damaged. The appellant sued the respondent out of the High Court for the cost of repairing the truck plus its loss of income while the truck was being repaired. After a separation of issues the High Court determined the issue of liability in favour of the respondent, and dismissed the appellant's claim. J In an appeal to the SCA,

2009 (1) SA p465

Held, that a lessee was in general obliged to return the leased article in the A condition it had been in at the outset of the lease period, fair wear and tear excluded. In the absence of agreement to the contrary all the lessor had to prove was that the article was returned in a damaged state, which then saddled the lessee with the onus of proving that the damage did not result from his own negligence or that of others under his control for whose acts he was liable. In the present case the parties had agreed that the operator B had been negligent in driving while so tired that he fell asleep. The hirer's liability was thus entirely dependent on the parties' contract. (Paragraph [6] at 466H - 467A.)

Held, further, that clause 10 of the agreement obliged the operator to work on site under the respondent's 'sole and absolute control', and that the issue was thus whether the operator's negligence had to be construed as negligence C for which the respondent bound itself to be liable in terms of clause 21 of the agreement. This question had to be answered with reference to the contract and not to the principles of vicarious liability in delict, which appeared to have been the approach of the High Court. (Paragraph [8] at 468B - C.)

Held, further, that the operator's negligence while on site and under the D respondent's supervision and control had to be construed as 'the hirer's negligence' as envisaged in clause 21 of the agreement, thus rendering the respondent liable to the appellant for the resulting damages. (Paragraph [15] at 469G.) Appeal upheld.

Cases Considered

Annotations E

Reported cases

Eensaam Syndicate v Moore 1920 AD 457: referred to

Manley van Niekerk (Pty) Ltd (now Video Sound Studios (Pty) Ltd) v Assegai Safaris and Film Productions (Pty) Ltd 1977 (2) SA 416 (A): referred to.

Unreported cases F

RH Johnson Crane Hire (Pty) Ltd v SA Iron & Steel Industrial Corporation Ltd (SCA case No 207/85, 31 March 1987): applied.

Case Information

Appeal from a decision in the Witwatersrand Local Division (Van Oosten J). The facts appear from the judgment of Leach AJA. G

R Stockwell SC for the appellant.

DA Smith SC (with MT Shepherd) for the respondent.

Cur adv vult. H

Postea (September 23).

Judgment

Leach AJA:

[1] During June 2000 the parties entered into an agreement in terms of I which the appellant let to the respondent a CAT 769 articulated dump truck, together with the services of an operator. The respondent, a partnership between a number of major civil-engineering companies, was engaged in the construction of the Maguga Dam in Swaziland and used the truck and its operator in the course of its operations at that site. In the early hours of 5 October 2000 the operator fell asleep while driving J

2009 (1) SA p466

Leach AJA

A the truck along a haul road at the site, allowing the truck to leave the road and collide with an embankment. For convenience I shall refer to this as 'the accident'.

[2] The truck was extensively damaged in the accident, and in due course the appellant instituted an action for damages in the Johannesburg B High Court, claiming payment by the respondent of both the cost of repairing the truck as well as an amount in respect of loss of income because it was out of operation for several weeks until it was repaired. The respondent denied liability and the matter proceeded to trial.

C [3] Although the precise terms of the agreement under which the truck had been let to the...