S M Goldstein & Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd and Another
Jurisdiction | South Africa |
Judge | Smalberger JA, Harms JA and Plewman JA |
Judgment Date | 08 September 2000 |
Citation | 2000 (4) SA 1019 (SCA) |
Docket Number | 513/98 |
Hearing Date | 29 August 2000 |
Counsel | P J van Blerk SC (with him I Miltz) for the appellant. D M Fine SC (with him K S Tip SC) for the respondents. |
Court | Supreme Court of Appeal |
Harms JA: H
[1] The appellant, a building contractor of note, was responsible for the building of an hotel known as the Drakensberg Sun. The land and building owner is the first respondent and the lessee and operator of the hotel the second respondent. During the winter of 1988 a fire which had its source in the fireplace in the lobby of the I hotel destroyed part of the complex. The respondents, claiming in delict and alleging negligence, joined the architect, the interior decorator, the project manager and the appellant in an action for damages. The case against the other defendants has either been settled or withdrawn and in the Court below Malan J held the appellant liable to compensate the respondents for any J
Harms JA
damages suffered as a result of the fire. Since the question relating to quantum A was separated from the liability issue, the instant appeal (which is before us with the leave of the Chief Justice) is against that finding only.
[2] The Drakensberg tends to be rather cold in winter and a fireplace in the lobby must have been an important design feature. One can assume that between them the architect and the interior decorator B decided that the ambience of the area and the hotel called for a rustic look. In the event, the builder was issued with drawings and instructions to build a fireplace using a Jetmaster firebox suitable for an open fire. A railway sleeper, impregnated with bitumen, had to rest on top of the firebox to form a mantlepiece. Above that an C ornamental structure consisting of a sheet of chipboard with decorative but real log ends or butts had to be fixed to the masonry which formed the chimney.
[3] As designed, the fireplace did not comply with the installation instructions issued by Jetmaster with every unit sold. Of importance in this case is the following instruction: D
'Important: Combustible materials should not be fitted within . . . 450 mm above the firebox unless adequate provision is made to insulate such materials.'
In a number of respects the rest of the design did also not comply with the National Building Regulations. For instance, although the roof had to be built with wooden shingles, the necessary and prescribed fire E prevention measures did not form part of the design. The appellant, sometimes using nominated subcontractors, built the hotel in general accordance with the architect's plans but in constructing the fireplace failed to adhere to Jetmaster's quoted instructions or the National Building Regulations. F
[4] The fireplace was in constant use. The railway sleeper rested on the hottest part of the firebox and in time the heat caused the sleeper to ignite. From there the fire spread into the roof void via a false flue that had been created between the sheet of chipboard and the masonry. The rest of the causal chain need not be related, nor the extent of the damage. G
[5] The respondents relied upon and the Court below dealt with a large number of grounds of negligence. In the light of the view I take of the...
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