Randaree and Others NNO v W H Dixon and Associates and Another

• Jurisdiction: South Africa
• Judge: Kotzé JA, Joubert JA and Van Heerden AJA
• Judgment Date: 25 November 1982
• Citation: 1983 (2) SA 1 (A)
• Hearing Date: 23 September 1982
• Court: Appellate Division

Kotzé JA:

On 9 March 1981 HEFER J issued an order in the Natal

Kotzé JA

Provincial Division that three actions, Nos 520/78, 521/78 and 555/78, be consolidated for the purpose of trial and commenced the hearing forthwith. The litigation concerns the construction of a building on lot 441, Newcastle. The litigants are the owners of lot 441, a consulting engineer employed by the owners A to design the reinforced structure of the building and a firm of architects employed by the owners to render the architectural services in regard to the erection of the building. The consulting engineer (Neville Harrison Dixon) is the plaintiff in case 520/78. I shall refer to him as Dixon or the engineer. The firm of architects (Glasspool, Coote and B Clarkson) is the plaintiff in case 521/78. I shall refer to it as the firm and to Colin Frank Glasspool (one of the partners) as Glasspool. The owners are the defendants in cases 520/78 and 521/78 and the plaintiffs in case 555/78. I shall refer to them as the owners and to the late S I Vawda (who conducted the bulk of the negotiations with Dixon and the firm on behalf of the owners as their duly authorised C representative) as Vawda. Dixon and the firm are the defendants in case 555/78. In cases 520/78 and 521/78 Dixon and the firm respectively sued for their professional fees and in case 555/78 the owners sued for damages. By agreement the quantum of the damages in case 555/78 was deferred pending a decision as to the question of liability. (Cf in this regard D Botha v AA Mutual Insurance Association Ltd and Another 1968 (4) SA 485 (A) at 489A - B.) The decisive issue in each action is whether (as contended by them) Dixon and the firm performed their functions with the requisite degree of care and skill or whether (as maintained by the owners) they were in breach of their duties to provide skilled professional services. The relationship between the litigants is contractual and the test E of whether the engineer and the firm are in breach of their duties is whether they acted negligently or not. This question is one of fact. (Halsbury Laws of England 4th ed vol 4 para 1330.)

During construction the wishes of the owners fluctuated in regard to the exact nature of the proposed building: originally F (towards the middle of 1973) a double storey building was commissioned by Vawda (referred to in the evidence as "structure A"); about July 1974, Vawda directed a change of design (referred to in the evidence as "structure B"); about December 1974, Vawda requested a further alteration (referred to in the evidence as "structure C"); about March 1975 instructions for the final design (referred to in the evidence G as "structure D") were given by Vawda. The plans for structure A provide for a double storey building with large shops on the ground floor, show rooms on the first floor and a temporary roof of reinforced concrete and provision for future expansion in the form of offices on floors to be added later. Stairs and H two lifts were also envisaged. The structure B plans provide for small shops, a bank and strongroom on the ground floor. That necessitated doing away with the lifts. A car park on the first and...