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IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter
of:
THE MINISTER OF PUBLIC
WORKS
AND LAND AFFAIRS
Appellant
and
GROUP FIVE BUILDING
LIMITED Respondent
CORAM: HEFER, NIENABER, MARAIS, SCHUTZ and PLEWMAN JJA
DATE OF HEARING:
13 May 1999
DATE DELIVERED: 28 May
1999
MARAIS JA . . .
MARAIS JA:
I have had the benefit of reading the judgments of
Schutz JA and Plewman JA. I agree with the judgment of Schutz JA and with the
order he proposes. I agree too with both of them that the taking of a cession
of the contractor’s rights against the sub-contractor
does not amount to a
waiver or abandonment of the employer’s rights against the
contractor.
My preference for the view of the contractor’s
obligations taken by Schutz JA is based upon the following considerations.
The
contrary view does not, in my opinion, take sufficient account of the full
amplitude of the contractor’s obligation
under clause 16(4)(a) “to
ensure that the nominated sub-contractor carries out and completes the work
under such sub-contract
to the Director-General’s satisfaction”.
Nor does it accommodate the undeniable fact that the contract postulates that
the contractor is to ------------------------------------
be liable for the
sins of the nominated sub-contractor. I say that because of the existence in
the contract of clauses such as
cl 16( 7) and cl 17(8) which absolve the
contractor of such liability but only in particular circumstances. If no
liability
was intended to exist in any circumstances these clauses would have
been superfluous. The omission of any generally applicable
clause expressly
excluding the liability of the contractor for the shortcomings of nominated
sub-contractors is also surprising if
that was indeed what was intended. No
less surprising, if sec 16 was intended to amount to a numerus clausus of
the employer’s rights when defective work had been done by a nominated
sub-contractor, is that there is not a simple statement
to that effect in the
contract.
The absence of any specific provision in the Bills for
“supervision” of the particular sub-contract is, in my view,
too
slender a basis for approaching the matter on the footing that there is an
inconsistency between the Bills and the contract so
that the Bills are to
prevail. I do not think anything turns on the provision in the Bills for
“bediening” in respect
of fire alarms. I do not understand that
term to be synonymous with “supervision”. That item in the Bills
caters
for attendance upon the sub-contractor in order to co-ordinate the
sub-contractor’s work with his own and for the provision
of that which the
sub-contractor may need on the site to do his work, which are not the same
thing.
What Schutz JA has said about the contractor being able, if
so minded, to procure appropriate supervision of technical and complex nominated
sub-contract work was said, I think, to make
the point that the contractor is
not helpless and vulnerable in that respect. As I read it, the real thrust of
his judgment is
that the contractor is effectively a guarantor of the
performance of the nominated sub-contractor. If the contractor chooses not
to
supervise or to procure appropriate supervision of the nominated
sub-contractor’s work, that is his prerogative. But if
his confidence in
the sub-contractor turns out to be misplaced, he may (depending upon which of
the remedies available to the employer
the employer invokes) have to suffer the
consequences.
____________________
R M MARAIS
HEFER ) CONCUR
NIENABER
JA)
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URL: http://www.saflii.org/za/cases/ZASCA/1999/38.html