Strijdom Park Extension 6 (Pty) Ltd v Abcon (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Hefer JA, Howie JA, Zulman JA
• Judgment Date: 28 August 1998
• Citation: 1998 (4) SA 844 (SCA)
• Docket Number: 662/95
• Hearing Date: 17 August 1998
• Counsel: PMM Lane (with him CT Wright) for the appellant CA Thomson for the respondent
• Court: Supreme Court of Appeal

Strijdom Park Extension 6 (Pty) Ltd v Abcon (Pty) Ltd
1998 (4) SA 844 (SCA)

1998 (4) SA p844

Citation	1998 (4) SA 844 (SCA)
Case No	662/95
Court	Supreme Court of Appeal
Judge	Hefer JA, Howie JA, Zulman JA
Heard	August 17, 1998
Judgment	August 28, 1998
Counsel	PMM Lane (with him CT Wright) for the appellant; CA Thomson for the respondent

Flynote : Sleutelwoorde F

Engineering and construction law — Building contract — Engineer's contractual duty to his client and not to contractor — Not engineer's duty to contractor (although it might well be his duty to his client) to intervene if contractor appears to be going wrong unless it is apparent that contractor does not know his business and is going to go wrong — It is G contractor's decision how he carries out construction work and he cannot pass blame for defective work on to engineer or architect.

Engineering and construction law — Building contract — Liability of contractor for defects and insufficiencies in works and materials — Clause in contract stating that nothing in contract 'shall be construed so as to restrict or remove in any H way contractor's liability for any defects or insufficiencies in works or material which reasonable examination would not have disclosed' — True enquiry is not whether tests carried out would be reasonable, but whether any investigation as to existence of defect reasonably required at all — Reasonableness of examination not determined only by its extent or expense or ease with which, if applied at outset, it would have revealed defect, but also by what, at relevant time, I reasonably careful architect would consider appropriate line of investigation given facts known at that stage — Date of examination is after completion of work and rectification of any patent defects.

Engineering and construction law — Building contract — Onus — Contractor who breaches his contract is liable at common law for damages and if he J

1998 (4) SA p845

seeks protection of contractual provision he is, in effect, confessing and avoiding and, in event of proof of breach, A saddled with burden of establishing defence by bringing himself within terms of provision concerned.

Headnote : Kopnota

The respondent had been employed by the appellant as a contractor in terms of a building contract. The contract B had, inter alia, included a clause 13.3.3 which stated that nothing in the contract 'shall be construed so as to restrict or remove in any way the contractor's liability for any defects or insufficiencies in the works or material which a reasonable examination would not have disclosed'. A steel-reinforced concrete slab constructed by the C respondent in terms of the contract had failed approximately two years after the appellant had taken occupation and had had to be replaced. The appellant had sued the respondent for damages, being the cost of replacing the slab. The respondent had averred that it had constructed the slab in accordance with the engineer's design and that the slab had failed because the design was defective. It had further contended that a reasonable examination would have disclosed the defect in the slab. The respondent argued that the onus was on the D appellant to show that the defect would not have been disclosed by a reasonable examination.

Held, that the engineer's contractual duty was to his client and not to the contractor. It was not even his duty to the contractor (although it might well have been his duty to his client) to intervene if the latter appeared to have been going wrong unless it was apparent to him that the contractor did not know his business and was going to E go wrong. It was the contractor's decision how he carried out the construction work and he could not pass the blame for defective work on to the engineer or architect. (At 855F/G--H.)

Held, further, that, when considering whether a reasonable examination would have disclosed the defect, the true enquiry was not whether tests carried out would have been reasonable, but whether any investigation as to F whether there was a defect was reasonably required at all. The reasonableness of an examination was not determined only by its extent or expense or the ease with which, if applied at the outset, it would have revealed what eventually transpired to be the defect. It was also determined by what, at the relevant time, a reasonably careful architect would have considered to be an appropriate line of investigation given the facts known at that stage. (At 856D--D/E and 858A/B--C.) G

Held, further, that the examination referred to in clause 13.3.3 was one at the date from which the clause spoke, inter alia preparatory to, and for the purpose of, issuing a final certificate. In other words, the date of the examination was after completion of the work and rectification of any patent defects. (At 856G--H.) H

Held, further, that the contractor who had breached his contract was liable at common law for damages and if he sought the protection of a contractual provision he was, in effect, confessing and avoiding and, in the event of proof of the breach, saddled with the burden of establishing the defence by bringing himself within the terms of the provision concerned. (At 857B--C and I.) I

Held, further, that on the evidence the appellant had established that the slab failed because the respondent had not carried out its construction in a proper and workmanlike manner, thereby breaching the building contract. (At 855B--B/C.)

Held, further, on the evidence, that the respondent had failed to prove that as at the end of the defects period reasonableness required a more extensive J

1998 (4) SA p846

examination to have been conducted than that which had been. The eventually fatal defect in the slab was A therefore not one which would have been disclosed by a reasonable examination at the relevant time. (At 859E/F--F/G.) Appeal upheld.

The decision in the Witwatersrand Local Division in Abcon (Pty) Ltd v Strijdom Park Extension 6 (Pty) Ltd reversed. B

Cases Considered

Annotations

Reported cases

Clayton v Woodman & Son (Builders) Ltd and Others [1962] 2 All ER 33 (CA) ([1962] 1 WLR 585): dicta at 39I--40A and 40I--41E (All ER) and 593--5 (WLR) applied C

Oldschool v Gleeson (Construction) Ltd 4 BLR 103: dicta at 123 and 130--1 applied

East Ham Borough Council v Bernard Sunley & Sons Ltd [1965] 3 All ER 619 (HL): followed.

Case Information

Appeal from a decision in the Witwatersrand Local Division. The facts and the nature of the issues appear from the reasons for judgment. D

P M M Lane SC (with him C T Wright) for the appellant.

C A Thomson for the respondent.

In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following authorities:

AMF International Ltd v Magnet Bowling Ltd [1968] 1 WLR 1028 E

Barclays Bank DCO v Shaw 1965 (2) SA 93 (O)

Barkan v Sciacero II 1933 NPD 524 at 534

BAT Rhodesia Ltd v Fawcet Security Organisation (Salisbury) Ltd 1972 (4) SA 103 (R)

Bird v Carlis 1904 TS 637 F

BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) at 419C--H

Bothwell v Union Government (Minister of Lands) 1917 AD 262 at 280--1

British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railway Co of London Ltd [1912] AC 673 G

Broderick Motors Distributors (Pty) Ltd v Bayers 1968 (2) SA 1 (O) at 4B--C

Bruce v Berman 1963 (3) SA 21 (T) at 23H

Cassel and Benedick NNO and Another v Rheeder and Cohen NNO and Another 1991 (2) SA 846 (A) at 853C--I H

Clay v AJ Crump & Sons Ltd [1968] 1 QB 533

Combrian Collieries Co v Jenkins and Sons (1920) 23 NLR 431

Concord Insurance v Oelofsen 1992 (4) SA 669 (A) at 673I--674B

De Pinto v Rensea Investments (Pty) Ltd 1977 (2) SA 1000 (A)

Electricity Supply Commission v Stewarts & Lloyds of SA 1981 (3) SA 340 (A) at 347B--E I

Eskom v First National Bank of South Africa Ltd 1995 (2) SA 386 (A)

Fruhauf v Morrisen & Co 1911 TPD 963 at 965

Gengan v Pathur 1977 (1) SA 826 (D) at 830G

Hadley v Baxendale (1854) 9 Ex 341

Hansen and Schrader v Deare (1887) EDC 36

Hazis v Tvl & Delego Bay Investments Co Ltd 1939 AD 327 J

1998 (4) SA p847

Hendriks & Soeker v Atkins 20 SC 310 A

Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) at 687

Holscher v ABSA Bank 1994 (2) SA 667 (T) at 676

Hutchinson v Harris 10 BLR 19 (CA) at 22--3

In re: Alluvial Creek Ltd 1920 CPD 532 at 535 B

Incorporated General Insurances Ltd v Shooter t/a Shooter's Fisheries 1987 (1) SA 842 (A) at 862C--D

Inspan Motors (Pty) Ltd v De Kock 1970 (4) SA 491 (N) at 501B

International Shipping Co (Pty) Ltd v Bently 1990 (1) SA 680 (A) at 700E--H C

Jayber (Pty) Ltd v Miller 1980 (4) SA 280 (W) at 282

Kelly and Hughe's Trustee v Union Government 1928 TPD 272 at 284

Kemp v Santam Insurance Co Ltd 1975 (2) SA 329 (C) at 331H

Kensington and Chelsea and Westminster Area Health Authority v Wettern Composites (1985) 31 BLR D 57

Knight v Hemming 1959 (1) SA 288 (F) at 292H

Larter v Daily 1914 EDL 23 at 28

Lavery & Co Ltd v Jungheinrich 1931 AD 156 at 165, 169

Lemore v African Mutual Credit Assocation and Another 1961 (1) SA 195 (C) at 199F--H

Macs Maritime Carrier v Keeley Fording & Stevedoring 1995 (3) SA 377 (D) at 381F--G E

Manly van Niekerk (Pty) Ltd (now Video Sound Studios (Pty) Ltd) v Assegai Studios & Film Productions (Pty) Ltd 1977 (2) SA 416 (A) at 422H--423A, 423B

Minister of Police v Skosana 1977 (1) SA 31 (A) at 34E--35A

Minister van Wet en Order v Ntsane 1993 (1) SA 560 (A) F

Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A) at 142H

Napier v Collet 1995 (3) SA 140 (A) at 144B--F

Nel v Cloete 1972 (2) SA 150 (A) at 166--7

North & Son (Pty) Ltd v Albertain 1970 (1) SA 198 (C)

Novick v Benjamin 1972 (2) SA 842 (A) G

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