|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South Africa: Supreme Court of Appeal |
[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]
Case No 606/96
IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In the matter
between
THE MINISTER OF PUBLIC WORKS AND
LAND AFFAIRS
APPELLANT
AND
GROUP FIVE BUILDING LIMITED
RESPONDENT
BEFORE: HEFER, NIENABER, MARAIS, SCHUTZ AND PLEWMAN JJA
HEARD: 13 MAY 1999
DELIVERED: 28 MAY 1999
SCHUTZ JA
Building contract - nominated sub-contract works form part of works under
main contract - main contractor responsible for such works
being according to
specification - commencement of prescription of claim for remedying defective
work.
________________________________________________________________
J U D G M E N T
________________________________________________________________
SCHUTZ
JA:
Some years ago the old Roeland Street gaol in Cape Town was
converted into a State archive. The main contractor was the respondent
Group
Five Building Limited (“the contractor”). The government is
represented in the appeal by the appellant, the Minister
of Public Works and
Land Affairs. I shall refer to the government as “the employer”.
Because of the use to which the
building was to be converted it was important
that a proper fire-alarm system be installed. This work was to be done by a
specialist
nominated sub-contractor. The company ultimately nominated was
KPL-ETSA (Pty) Limited (“the sub-contractor”). For ease
of
exposition I shall refer to these three persons using pronouns appropriate to
natural persons.
Various disputes led to a trial between the employer and
the contractor. The only dispute ventilated on appeal relates to a damages
counterclaim brought by the employer against the contractor. It concerns the
cost to the employer of putting right defective work
done by the
sub-contractor. Contrary to the specification, the field wiring had numerous
joints when it should have been continuous,
and certain conductors had
differently coloured tracer strips. Van Zyl J in the Cape Provincial Division
held that, although the
sub-contract works formed part of the entire works which
the contractor had to deliver to the employer, the contractor was not liable
to
the employer for the defective work, in that there was no duty upon the
contractor to supply “technical supervision”
of the
sub-contractor’s work, as opposed to his acknowledged duty to co-ordinate
the works and provide general supervision.
Leave to appeal having been refused
by Van Zyl J, it was subsequently granted on petition. Both in the trial and on
appeal questions
of quantum were left over.
The institution of the
nominated sub-contract has long been known to our building trade and our law.
Its first essential quality
is that the employer reserves to himself the right
to nominate as sub-contractors particular persons to perform specified parts
of
the overall works. A common reason is that he wishes to have control over the
selection of the persons who will perform specialised
and skilled work. But
another reason, becoming increasingly common because of increasing
specialisation and use of sub-contractors,
is to obtain competitive tenders for
sub-contracted works. A second essential feature is that the contractor is
obliged to accept
the nomination, subject to a limited but nonetheless important
right of challenge. A third is that the contractor must enter into
a
sub-contract with the person nominated, usually one containing the same terms,
particularly as to performance, as those contained
in the main contract. A
fourth is that there is no privity of contract between the employer and the
sub-contractor. From this
flows a fifth, that the employer compels performance
of the sub-contract not directly, but through his remedies against the
contractor
under the main contract. A sixth is that in a bills of quantities
contract a figure is inserted in the bills for the nominated
sub-contract works
which is called a provisional sum, provisional because when a payment
certificate is prepared this sum is struck
out and replaced by the contract
price derived by multiplying the actual measured quantities by the appropriate
unit rates in the
bills. A common further feature is that the terms of the
sub-contract are settled only after the main contract has been concluded.
This
description is a broad one, and, of course, its accuracy in a particular case
depends upon the terms of the particular contract.
The entire machinery,
evolved over many years, is designed to avoid privity between the employer and
the nominated sub-contractor,
whilst retaining substantial control over the
sub-contract works in the employer’s hands. Anyone who has had experience
of
the electrician driving a hole through the wall after the plasterer has
completed his work, or the installer of the alarm lights
putting nails into the
handiwork of the waterproofer, will understand the frustrations caused by
everybody blaming someone else,
in the absence of a single contractor to whom
one may look to sort out such matters. This is the main motive behind the
avoidance
of privity with sub-contractors. But the machinery does have
disadvantages for the contractor, who has to put up with a sub-contractor
whom
he might not himself have selected. In more recent times forms of contract have
been evolved which press less heavily upon
the contractor, but the contract with
which we are concerned in this case is of the traditional kind, and I think that
my general
description is appropriate to it.
The main contract, concluded in
July 1987, is a bills of quantities (or “rates”) contract. The
documents making it up
are the tender, including conditions of tender, its
acceptance, the articles of agreement, the conditions of contract (GO 677), the
specification, the drawings and the bills of quantities. When the contract was
concluded, the specification, drawings and bills
for the fire-alarm sub-contract
had not yet been prepared. Much was sought to be made of this fact.
Do
the sub-contract works form part of the main contract
works?
Notwithstanding that the tender form stated that the fire-alarm
nominated sub-contract would later be advertised separately, it,
together with
other such nominated sub-contracts, was said to be part of the “works in
accordance with the drawings, specifications,
bills of quantities and conditions
of contract”. The intention was that the fire-alarm drawings,
specifications and bills
would be brought into existence and would form part of
the contract. Therefore, notwithstanding that the sub-contract specifications
and bills had not yet been prepared, I would have thought that this provision
alone puts an end to the much pressed submission that
the nominated fire-alarm
sub-contract works did not form part of the “Works” as defined in
clause 1 (1) (n) of the conditions
of contract. Essentially the
“Works” are “all the buildings, structures or services
..... that are to be erected or constructed in terms of this contract ...”
(own emphasis).
Clause 3(1) requires the contractor to “provide everything
necessary for the proper execution of the works, .... and carry
out and complete
the works to the satisfaction of the representative/agent ....” Clause
21(1) requires the contractor to
deliver “the works and premises when
completed .... fit for occupation and complete in every particular ....”
It is
difficult to think of an archive building fit for occupation without a
proper fire-alarm system.
As the argument of Mr Duminy, for the
contractor, developed, it became apparent that what he was contending for was
that clause 16, headed “Nominated Sub-contractors”,
supplied a
self-contained contractual regime which took all nominated sub-contractual works
outside the ambit of the “Works”
and beyond the reach of operation
of clauses 3 (1) and 21 (1), as also much of the rest of the contract. I must
say that if clause
16 does have this sequestering function, that function is
most artfully masked and seemingly much contradicted. However, in order
to
demonstrate this conclusion, and also for the purposes of the next argument,
concerned with the extent of the contractor’s
duties even if the
“Works” argument should fail, it is necessary to set out much of
clause 16, which reads in part:
“16. (1) The director-general may nominate a sub-contractor to execute work or supply or fix goods and such sub-contractor shall hereinafter be referred to as a ‘nominated sub-contractor’.
16. (2) The fact that the director-general has nominated a sub-contractor shall not create privity of contract between the director-general and such nominated sub-contractor.
16. (3) The contractor shall at any time on being requested to do so by the director-general enter into a contract with a nominated sub-contractor within fourteen days of such request in respect of the work for which he has been nominated, in which contract the contractor shall, inter alia, secure mutatis mutandis for himself the same rights that the director-general has in terms of this contract. If the contractor satisfies the director-general in writing that he is unable to enter into such a contract because -
16. (3) (a) he has an objection which is acceptable to the director-general against such nominated sub-contractor;
16. (3) (b) a nominated sub-contractor declines to enter into a contract with the contractor whereby he undertakes the obligations set above; or
16. (3) (c) a nominated sub-contractor declines to save harmless and indemnify the contractor against any negligence on the part of such nominated sub-contractor, his agents, workmen and servants or against any misuse by him or them of any materials or plant being the property of the contractor and against all claims a aforesaid or any claim under the workmen’s Compensation Act, 1941, as amended,
The director-general shall be
entitled to nominate another
sub-contractor.
16. (4) The contractor furthermore undertakes -
16. (4) (a) as against the director-general, to carry out his obligations to the nominated sub-contractor under the nominated sub-contract and to co-ordinate the nominated sub-contractor’s work and the work under the main contract and to ensure that the nominated sub-contractor carries out and completes the work under such sub-contract to the director-general’s satisfaction;
16. (4) (b) in case of default by the nominated sub-contractor, to take steps against the nominated sub-contractor similar to those set out in 24 hereof if and as requested to do so by the director-general or, if requested to do so by the director-general, to cede to the director-general any rights that the contractor may have against such nominated sub-contractor arising from such default;
16. (4) (c) to institute action against the nominated sub-contractor to enforce compliance by the nominated sub-contractor with such sub-contract or to claim damages for non-compliance or breach of such sub-contract or to take such other steps or to claim such other sums as may be taken or may be claimable under or arising from non-compliance or breach of such sub-contracts or from any indemnities given by the nominated sub-contractor to the contractor. If requested to do so by the director-general or, if requested to do so by the director-general, to cede to the director-general any rights that the contractor may have against such nominated sub-contractor arising from such non-compliance or breach;
16. (4) (d) if requested to do so by the director-general, to apply for the sequestration of the nominated sub-contractor’s estate (or for the liquidation thereof in the case of a company), to prove claims against such estate and to take all such steps as may be necessary for the recovery of amounts due under or arising from such sub-contracts or any indemnities given or, if requested to do so by the director-general, to cede to the director-general any rights that the contractor may have against such nominated sub-contractor.
16. (4) (e) in the event of the liquidation or sequestration, as the case may be, of the nominated sub-contractor’s estate or the abandonment by him of his contract or of the termination of such contract, to enter into a contract with another contractor nominated by the director-general to complete the work under such first mentioned contract; and further agrees that all the provisions of this contract shall apply mutatis mutandis with equal force to such fresh or any substituted nominated sub-contracts;
16. (4) (f) to advise the director-general immediately in the case of the sequestration of the estate of the nominated sub-contractor (or of its liquidation, in the case of a company) or of any breach of contract by such nominated sub-contracts or of his failure to pay any damages or the amounts due under or arising from such sub-contractor and of the steps he proposes to take to carry out his obligations as set out above;
16. (4) (g) that his failure to carry out any of his obligations under 16 hereof shall constitute a default as contemplated under 24 hereof and that the director-general shall be entitled to exercise the rights therein set out and, in addition thereto, to claim from the contractor any damage, loss or costs that the director-general may suffer as a result of such failure, to determine such damage, loss or costs and to deduct the same from any amounts due to the contractor under this contract or any other contract heretofore or hereafter entered into between the government and the contractor.
16. (5) Payment shall be made to a nominated sub-contractor by the contractor within seven days of his receipt of a progress payment under 23 hereof which includes the value of such nominated sub-contractor’s work.
(6) . . .” (Own emphasis).
In clause 16 (4) (a)
conceivable support for the contractor’s argument may be found in the
distinction drawn between the nominated
sub-contractor’s work and the work
under the main contract, but I think that all that is in fact achieved is a
convenient means
of distinction between the particular sub-contractor’s
work and all the other work, particularly as the “work under the
main
contract” must include work done by other nominated sub-contractors. This
is so because the contractor does not dispute
that he must co-ordinate the work
of all sub-contractors as well as his own work. There are in fact other
nominated sub-contractors.
The result is that no significant support can be
derived from the phrase in question. On the other side there are numerous
clauses
which would be unworkable, or practically so, if the work done by
nominated sub-contractors did not form part of the works. Among
them are 6 (5),
6 (6), 6 (7), 9, 10 (2), 13 (2) and 22 (1). To take two examples. Clause 6 (7)
entitles the employer’s engineer
to instruct the contractor to remove
“any part of the Works” which he decides is not in accordance with
the contract.
This is a right fundamental to the proper performance of the
contract, and it is difficult to conceive of its being hedged around
in the case
of sub-contractors. Clause 9 entitles the engineer to be notified by the
contractor whenever “a portion of the
Works” subject to measurement
is to be covered up. Is the work of a nominated sub-contractor, whose work must
also be measured,
to be excepted? More generally, the exclusion of such work
from the “Works” would be quite contrary to one of the essential
features of the institution of nominated sub-contracts.
Faced with such
difficulties, Mr Duminy was driven to concede that what the contractor
had to deliver under the main contract was a building with a fire-alarm system
and
not a building devoid of one. This concession, inevitably made, I think,
cannot be successfully qualified, as Mr Duminy tried to do, and the
ineluctable conclusion is that work to be performed under the fire-alarm
nominated sub-contract also constitutes part of the “Works”
under
the main contract. This conclusion agrees with van Zyl J’s judgment up to
this point.
Is the contractor responsible for the quality of the
sub-contract works?
The next main argument was that, even if this be so,
it was not part of the contractor’s duties to exercise or provide
“technical
supervision” (as opposed to administrative or
co-ordinating supervision). Consequently, so it was contended, the contractor
cannot be held liable for defective work of this nature done by a nominated
sub-contractor being paid for. Faced by questions as
to where technical
specialist skill ended and where ordinary builder’s skill began, Mr
Duminy adapted his argument so that his submission is that the contractor is
relieved from examining the quality of all nominated sub-contract works,
regardless of the level of skill required to test their sufficiency. This
broadening of the submission
was again, I think, inevitable, in the light of an
example such as this. Suppose that the contractor is an ordinary builder who
is going to do the brickwork, but the employer has decided that the foundations
are to be laid under a nominated sub-contract.
I do not think that any real
distinction in the degree of skill is perceivable, so that a distinction cannot
be made on that ground.
Hence the line of distinction has to become nomination
or no nomination, leading inevitably to the submission mentioned earlier
that
the works of all nominated sub-contractors are excluded from the works.
Pausing at this point, I find the notion that the contractor in the example
given is not liable for the quality of the foundations a startling one.
The
general provision in clause 16 that is relevant and in itself conclusive on the
question presently under consideration is that
contained in clause 16 (4) (a),
the pertinent part of which I repeat : “The contractor furthermore
undertakes - . . . (a)
. . . to co-ordinate the nominated sub-contractor’s
work and the work under the main contract and to ensure that the nominated
sub-contractor carries out and completes the work under such sub-contract to
the Director-General’s satisfaction”. (Own emphasis). The sense in
which the word “ensure”
is used here is “to warrant” or
“to guarantee”. In other words the contractor undertakes to the
employer
that he will deliver the sub-contract works to the employer in terms of
the specifications. The employer’s position is further
strengthened by
clause 16 (4) (g), which makes the contractor’s failure to carry out any
duty under clause 16 a breach, which
entitles the employer to resort to the
remedies contained in clause 24. Clause 24 (1) (d) in its turn states that the
contractor
is in default if he fails to comply with the provisions of clause 16.
Accordingly I must disagree entirely with van Zyl J’s
conclusion that:
“[T]here is no basis for the [employer’s] suggestion that the
[contractor] breached the main contract
by failing to ensure that [the
sub-contractor] complied with its obligations in terms of the nominated
sub-contract”. As to
how the contractor’s duty was to be fulfilled,
in argument much emphasis was placed upon legal remedies. Sensible owners and
builders do not conduct their business in the courts, except when it is
essential. In the normal course the contractor’s skilled
supervisor or
variously skilled supervisors should examine work soon after it is done and
order sub-contractors, whether nominated
or not, to remove work not in
accordance with the contract and do it over properly. Had the contractor in
this case equipped himself
to do that, much cost, both legal and otherwise,
would have been spared.
Contrary to the views I have expressed, Mr
Duminy argued that the words quoted from clause 16 (4) (a) do not convey
the generality which on their face they bear, but that they are
confined and
limited in their operation to the particular remedies set out in the succeeding
sub-paragraphs, such as (b) (c) and
(d). Further it was argued that the only
initiating steps that the contractor need take are to advise the employer of the
sub-contractor’s
breaches and other shortcomings. Thereafter he may sit
back passively and await the employer’s decisions to do or not to
do this
or that. I disagree entirely. Clause 16 (and particularly sub-clauses (b) to
(f) of it) is not a limiting and exclusive
codification of the employer’s
rights and the contractor’s duties in respect of nominated
sub-contractors. It must be
seen against the ample background of the common law
and against the rest of the contract. The contractor has his own rights against
the sub-contractor, even be he nominated, under the sub-contract as given force
by the common law, and he is obliged to use his
rights when indicated. The
employer’s position is similar, save that he relies upon the main
contract, again as given force
by the common law, and the power he is given
under the same to require the contractor to compel the sub-contractor’s
performance
under the sub-contract. He is not confined to the special remedies
set out in clause 16 (4). These are explicit additional remedies,
which may
either not be available at common law, or which might arguably fall into that
class. The object is to strengthen the employer’s
position, where he has
no privity with the sub-contractor, and avoid unnecessary arguments. I
conclude that clause 16 (4) (a) means
exactly what it says. The contractor must
ensure that the nominated sub-contractor performs, or face liability in
damages.
If the contractor does not dispose over the skills necessary to
supervise specialised work then he must either acquire them or not
undertake the
contract. He is not entitled to make a virtue of his lack of skill to excuse
himself from supplying “technical
supervision”. The contractor
called witnesses who claimed that builders in the Western Cape did not have such
skills and they
were not expected to have them. According to them the
contractor was entitled to rely on the employer’s specialist engineer,
in
this case Reitz and Geithner. No trade usage to this effect was pleaded. No
doubt there are several reasons for this, one of
them perhaps being that on the
contractor’s inevitable concession a builder would, in terms of such a
trade usage, also not
be expected to provide “technical supervision”
of foundation laying, in the example already given. Trade usage aside,
this
evidence is inadmissible. It is no mere background. It directly contradicts
the contract. I say this because the employer’s
engineer is employed and
paid by him to look after his interests. He is not employed nor paid by the
contractor. Nor may the contractor
give him any instructions. Nor does the
engineer owe loyalty to the contractor. He owes it to the employer, who is at
times the
contractor’s adversary with the engineer his champion.
A
further argument raised on behalf of the contractor is that there is no separate
item for “technical supervision”
in the bills of quantities.
Ergo no duty, runs the argument. This argument stems from the notion
that there is something extraordinary or unexpected, rather than
integral, about
such supervision, which was the view expressed in the evidence held
inadmissible. I do not agree. No special rate
is provided for
“ordinary” supervision of sub-contractors or for supervision of the
contractor’s own employees.
Yet such supervision must be provided. That
is common cause. What has to be decided is whether in terms of the contract
“technical”
supervision also has to be provided. As I have sought
to demonstrate, the distinction between “technical” and
“ordinary”
nominated sub-contracts fades away once examined.
There is therefore simply no basis for requiring special provision for
supervision
if supervision in either form is needed to deliver complete works
complying with the contract. Nor is there any basis for requiring
special
provision simply because a sub-contractor is nominated, unless one starts from
the premise that the contractor is not responsible
for the performance of such
persons, which would beg the question.
Accordingly, subject to the
further points to be dealt with, I am of the view that the counterclaim should
have succeeded.
I have made no mention of English cases such as
North West Metropolitan Regional Hospital Board v T A Bickerton & Son
Ltd [1970] 1 All ER 1039 (H L) and the considerable literature that they
have generated, not because I am unacquainted with the same,
but because,
whatever tendencies may be indicated, they do not help to solve the issues
before us, which involve a breach by the
contractor.
The effect of taking
cession
As was his entitlement, the employer did take cession of the
contractor’s rights against the sub-contractor, under clause 16
(4) (b).
This act, so it was argued, once performed constituted an election, which when
made constituted a waiver of all other rights
which the employer might otherwise
have had against the contractor. I can find no trace of a suggestion in the
clause that the taking
of a cession has so drastic a consequence as to terminate
permanently all the employer’s remedies. He might, for instance
take
cession at a stage when neither he nor the contractor has means of knowing
whether the sub-contractor is worth suing. Why,
in such a situation, should he
not be entitled to turn back to the contractor upon discovering that the
sub-contractor is indeed
not worth powder and shot? Cession is, to my mind,
merely an additional course, not available as of right under the common law,
but
in some cases of value to the employer. He might, for instance, conclude that
his contractor has not the means, or the special
skills or even the
determination to pursue litigation to a successful conclusion. Even without
these factors he may simply prefer
to have direct control over the
litigation.
There was some cursory debate before us as to whether it would
be open to an employer who has demanded and received cession of the
contractor’s rights against the sub-contractor to institute and pursue a
claim against the contractor without either excussing
the sub-contractor or
re-ceding the rights to the contractor, or without having some sufficient
justification for not proceeding
against the sub-contractor in terms of the
cession. As the matter was not fully argued, I prefer to leave the question
open. This
point was not raised by the contractor either in the court a
quo or in this court. It arose from a question put by the court. Even if
the point is sound in law, if it had been raised as a special
dilatory defence
in the court a quo the employer might have been able to answer it by
reference to facts which are not before the court. Accordingly, it is not open
to the contractor to rely upon it now.
Circumstances surrounding
termination of sub-contract as a defence
I mention this subject also
because it was argued, not because I think that it is an issue. It arises in
this way. After repeated
attempts had been made to obtain satisfaction from the
sub-contractor without avail, the contractor wrote to the employer requesting
instructions to terminate the sub-contract. (In passing, thereby impeccably
recognizing the long-established order of things as
between employer, contractor
and sub-contractor). On 2 December 1991 the employer responded by instructing
the contractor to do
so, which he did on the next day. Also on 2 December the
employer nominated two new persons to complete the sub-contract, stressing
the
urgency of the situation. The contractor was asked to confirm the
re-nomination. This the contractor declined to do, on 4 December,
giving as his
reason that it had not been given sufficient information as to the basis on
which the new nominees were to be appointed.
With a dispute as to the financial
implications of the first sub-contractor’s default in prospect, the
contractor seems to
have required the employer to surrender his rights against
him as the price of acceptance of the new nominees. This may have been
a breach
on the contractor’s part. It seems as if it was. Mr Duminy,
however, contends that it was the employer who was in breach. Who was in breach
was not an issue below, and even if it were possible
for us to resolve the
question, which I think it is not, I fail to see what bearing it has on the
decision of the issues which are
before us. Supposing that the employer should
have stayed his hand in making the appointments and was for that reason in
breach,
I do not think that the administration of the contract is to be treated
as the equal of playing a game of forfeits, where one wrong
move entails
losing all. The postulate for purposes of this defence is that there had been a
breach by the sub-contractor, for which
the contractor was responsible, and that
the employer had consequently suffered damage. It is possible that the extent
of the damage,
i.e. the cost of putting right, might have been less if the
process of re-nomination had run its full course, rather than that the
employer
should have engaged the two nominees as his direct contractors, which is what
happened when the contractor adopted the
stance already mentioned. If so, this
might be a matter for mitigation when quantum has to be decided (I
express absolutely no opinion on the matter). The employer’s conduct
might also once have given rise
to a claim by the contractor for the profit that
he would have been entitled to as a percentage of the ultimate price of the
provisional
sum (the sub-contract price). But these are all things that would
have had to be raised and I fail to see that their possible existence
in the
past detracts from the fact that the employer has suffered a loss for which the
contractor is accountable if the appeal succeeds
in other
respects.
Prescription
Finally, the contractor contends that, all
else failing, the employer’s counter- claim has become prescribed. The
issue is
when prescription began to run. The relevant facts are that the
employer became aware of the defects by not later than 30 May 1991.
The
sub-contract was terminated on 3 December 1991. The employer’s
counterclaim was delivered on 1 December 1994.
In terms of s 12 (1) of the
Prescription Act 68 of 1969 prescription commences to run as soon as a debt is
due. A debt is deemed
not to be due until the creditor has knowledge of the
facts from which the debt arises: s 12 (3). If the employer’s claim
in
this case began to prescribe only some time after the date on which the employer
gained such knowledge, then the date of gaining
knowledge, which is to be taken
to be 30 May 1991, would be irrelevant. My conclusion is that that is in fact
the case. I accept
the employer’s argument that the earliest possible
such date is 3 December 1991, which falls within the prescriptive period.
The
basis of the argument is that the employer would not have been entitled to bring
its damages claim merely upon the defective
work originally delivered being
discovered. This is so, as it is of the nature of a building contract such as
this one, that the
defaulting party usually has an opportunity and indeed a duty
to put right initially defective work. Clause 6 (7), already mentioned,
entitles the employer’s engineer to require defective work to be done
over, and under the sub-contract the contractor has the
same right against the
sub-contractor. These are not the only provisions that are relevant, but it is
unnecessary to refer to more.
The sub-contractor’s breach, once
committed, is not set in stone. The relevant engineer can require the works to
be broken
up and the breach to be remedied. But a stage is reached when the
defaulter is entitled to no more chances. That is the very earliest
stage at
which the employer’s damages claim could conceivably have become due. In
the present case it could, at the earliest,
only have been on the date on which
the sub-contract was cancelled, 3 December 1991, which falls within the
prescriptive period.
The matter is complicated by the dispute about the
nomination of new nominated sub-contractors, but this does not detract from the
fact that the very earliest date on which prescription could possibly begin to
run
was 3 December 1991. The onus of proving that prescription had
run rested on the contractor and he has failed to do so.
For these reasons
I consider that the contractor has not proved that the counterclaim has become
prescribed.
The appeal is allowed with costs, such costs to include those
consequent on the employment of two counsel.
The following order is made in
terms of an agreed draft:
1 Paragraphs 1, 5 and 6 of the order of the court a quo are set aside.
2 It is declared that respondent should bear the additional costs incurred as a result of the employment of the sub-contractors Visiotronic (Pty) Ltd and Whip Fire Protection Services (Pty) Ltd including the related supervision costs of the consulting engineers J D Reitz and Geithner.
3 The matter is referred back to the court a quo for a determination of the quantum of the claim in reconvention.
W P SCHUTZ
JUDGE OF APPEAL
CONCUR
HEFER JA
NIENABER JA
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/cases/ZASCA/1999/36.html