Glynden Props 21 (Pty) Ltd v Powell Boswell & Associates and Others (13620/2013) [2015] ZAGPJHC 8 (27 January 2015)

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[2015] ZAGPJHC 8
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Glynden Props 21 (Pty) Ltd v Powell Boswell & Associates and Others (13620/2013) [2015] ZAGPJHC 8 (27 January 2015)

REPUBLIC OF SOUTH
AFRICA
HIGH COURT, SOUTH
GAUTENG DIVISION (JOHANNESBURG)
Case No. 13620/2013
DATE: 27 JANUARY 2015
In the matter between:
GLYNDEN PROPS 21 (PTY)
LTD
.............................................................................
Plaintiff
And
POWELL BOSWELL &
ASSOCIATES
.......................................................
First
Defendant
PARAGON PROPERTY DEVELOPMENTS (PTY)
LTD
......................
Second
Defendant
GAUTENG PILING (PTY)
LTD
..................................................................
Third
Defendant
JUDGMENT
MEYER, J
[1] Mr and Mrs Willcocks, through the
plaintiff, Glynden Props 21 (Pty) Ltd (Glynden), as their property
holding company, purchased
a piece of land on the western slope of
the Boskruin Hill in Randburg, Johannesburg (the site) for the
purpose of building a new
residence on it with spectacular views. A
team of professionals was appointed to attend to the task, which
ultimately cost a total
of about R20 million. Design errors relating
to part of the foundation system were made causing structural defects
which now require
extensive remedial work to be undertaken, below
ground level and to the superstructure. The cost thereof is what
Glynden presently
seeks to recover, either from the first defendant,
Powell Boswell & Associates (a firm of consulting civil and
structural engineers),
which was appointed as the structural engineer
for the project, or from the third defendant, Gauteng Piling (Pty)
Ltd, which designed
and installed the reinforced concrete piles that
form an element of part of the foundation system of the house, or
from both.
[2] Mr Allan Willcocks, and the expert
witnesses Mr Bryan Tromp (consulting geotechnical engineer) and Mr
Antony Ritchie (consulting
structural engineer) testified for
Glynden. Mr Michael Boswell (consulting structural engineer), the
expert witnesses Mr Anthony
Butterworth (consulting structural
engineer) and Mr Jacobus Crous (geotechnical engineer and piling
specialist) testified for Powell
Boswell & Associates. Mr Nico
Maas (structural engineer), the expert witnesses Dr Peter Day
(consulting geotechnical engineer)
and Mr Andries Oosthuizen
(consulting structural engineer) testified for Gauteng Piling (Pty)
Ltd (Gauteng Piling). I refer to
these witnesses by their surnames.
The expert witnesses prepared reports and they testified on the
questions of liability and
quantum. Their reports and evidence
reflect a large degree of agreement, especially in respect of the
cause of the structural
damage that occurred, the remedial measures
to be taken and the costs thereof.
[3] Due to the topography of the site a
level terrace comprising an engineered fill and concrete block
retaining wall were constructed
upon which the western part of the
proposed new residence (a garage on the ground floor and a lounge on
the first floor) was to
be built. Crous explains that an engineered
fill is one that has been constructed under controlled conditions and
compacted with
a good quality soil. The remainder of the proposed
residence was to be built on natural ground or rock into the
hillside. The
engineered fill and retaining wall were designed,
specified, put out to tender and the construction thereof supervised
by a firm
of civil engineers, FSSE Foundation & Slope Stability
Engineering (FSSE), represented by its professional geotechnical
engineer,
Mr Johan Joubert (Joubert). Kalode Construction (Pty) Ltd
(Kalode) was appointed to construct the engineered fill and retaining

wall, which works were completed during late July or early August
2003.
[4] Tromp explains that the site is on
the side of a granite ‘koppie’ or hill which slopes down
on the western side.
The terrace is cut into the natural hill and
built-up of engineered fill that is compacted to a level of about 7 –
8 metres
at the lower part of the slope and retained by a concrete
block wall that is reinforced with a geo-synthetic membrane installed

immediately behind the concrete block wall. This type of retaining
wall is known as a ‘Löffenstein wall’ (the
retaining
wall). The geo-synthetic fabric retains or limits the outward
movement of the soil. It is designed to a tensile strain
value which
determines the anticipated deflection or movement of the overall
structure on completion of construction and for some
time thereafter.
The expected and anticipated movement of the retaining wall in this
instance as designed is in the order of about
75 millimetres.
[5] The expert witnesses agree that it
is common knowledge that fabric reinforced concrete retaining block
walls, such as the one
constructed in this instance, and the fills
they retain, undergo horizontal and vertical movements. They agree
that these movements
normally continue for a period of years after
construction. It is also undisputed that the unusual and critical
terrain parameters
due to the engineered fill and the retaining wall
required special structural and geotechnical engineering solutions
for the design
of an appropriate foundation system. Firstly, the
terrain is a complex topographic site. Secondly, there will be
horizontal and
vertical movement of the retaining wall and the fill.
Thirdly, there is a potential of vertical settlement of the fill due
to
its own weight. Fourthly, there is a potential of vertical
settlement of the soils underlying the fill due to the weight of the

fill that is above it. Fifthly, there is a potential of differential
settlement (vertical displacement) between the in situ ground
and the
engineered fill, because each has a different parameter of
compressibility. Sixthly, there is potential differential settlement

or compressibility within the engineered fill because its depth
varies between one or two and seven or eight metres. These founding

conditions on site are referred to as critical terrain conditions or
parameters.
[6] Mr Dirk Maat of Integrated Building
Services (Maat) represented the plaintiff as project manager or
principal agent during the
initial stages of the project. Glynden
appointed Mr Pellegrino of TPC Architects (Pellegrino) as the
architect for the proposed
residence and the second defendant,
Paragon Property Development (Pty) Ltd (Paragon), as the main
contractor. Glynden initially
appointed Hofmeyer Design Services as
the structural engineer to design all structural aspects of the
proposed new residence.
But Mr Hofmeyer passed away and Glynden, on
18 June 2003, on the recommendation of Pellegrino, appointed Mr
Boswell of Powell Boswell
& Associates (Boswell) as the
structural engineer in his stead.
[7] It is common cause that Boswell’s
provision of professional services in terms of the agreement that was
concluded between
Powell Boswell & Associates and Glynden on 18
June 2003 (the structural agreement) included, inter alia, the
design, detailing
and supervision of all the structural elements of
the proposed residence. Boswell accepts Willcocks’ evidence
that he undertook
to provide ‘a complete engineering solution’
in respect of the structural aspects of the project. It is common
cause
that Boswell was responsible for the scope of work related to
the structural engineering. It is undisputed that the structural

envelope which a structural engineer designs includes reinforced
concrete slabs, beams, columns, load bearing brick work (in some

instances) and foundations to support the structure.
[8] Willcocks testified that he was
concerned about the complexity of constructing part of the house on
engineered fill and part
of it on natural ground and he brought this
fact to the attention of Boswell at a meeting which they had on site
at the time of
Boswell’s appointment. Boswell assured him-
‘…that he was a
professional engineer, he had an excellent history, and he was more
than capable of doing the job of
this magnitude, and he would take
ownership of the entire project.’ Willcocks further testified
as follows about this meeting:
‘At the time I had stressed to Mr
Boswell that I thought his fee was expensive in comparison to the
other quotation and he
assured me that it was value for money and it
was a difficult job and it involved extensive engineering service and
I said well
if that is the case then we accept it for what it is but
we would like to have peace of mind that we have a professional
engineer
on board and we have a professional service.’
Boswell has no recollection of this
meeting.
[9] Initially the plan was to found the
entire house on conventional spread footing foundations. Boswell
testified that once the
architectural structure had been finalised
and he had a look at the loads that were going to be placed on the
engineered fill,
he felt uncomfortable to put conventional spread
footing foundations on the terrace. In this regard he testified:
‘. . . My gut feel was that we
would have undue settlements and the alternative was to go the piling
route. … I discussed
this with Johan [Joubert] and hence our
suggestion that maybe the piling route is the best route for that
portion of the structure
that fell within the engineered fill. It
gave me a little bit of comfort to know that my decision to go the
piling route was correct,
when the very man who designed the
engineered fill agreed with me and agreed that there could be
unacceptable settlements. …
I was never party to the control
of that engineered fill. You can look at the drawings and you can
see that it is done in 150
or 200 millimetre layers right from the
bottom built-up layer by layer with a G4 and G5 material. The G4 is
a classification of
a type of material. G4 has been a better
material than a G8. But I was never given any report to say that it
had all been built
according to the specification. Not being an
expert in engineered fills, I just felt, a gut feel is what we had,
that it should
not be put onto spread footings. It is also related
to what happens at the back of the house, which was by then we had
established
essentially on very good material and rock, which means
that if you support structure on rock and the front portion is on a
softer
material, you are going to get differential movements.
Whereas if you put in a pile that it would go straight down to
bedrock
and therefore your differential movements would be limited to
acceptable conditions.’
[10] On 11 August 2003 Boswell
addressed an email to Maat in which he advised as follows:
‘Following discussions with Johan
Joubert we both express our reluctance to found the residence on
conventional spread footings
considering the differential
compressabilities of the un-situ (sic) ground and engineered fill.
The stepped nature of the structure
and the positions of the cut fill
line also make articulations of the structure difficult and would
adversely affect rigid finishes.
We suggest we ask for prices from a few
piling contractors to supply say 600 [millimeter in diameter] piles
only where required.
This one-off size should also be capable of
drilling past any small to medium rock floaters. . . . Please
confirm how we should
proceed.’
Boswell explained when he testified
that from his-
‘… observations on
previous jobs where there had been piling, there was often resistance
by rock to a small pile diameter,
whereas the bigger piles, the 600’s
and 500’s, could quite often take out a floater of that sort of
size’.
Mart conveyed the recommendation of
Boswell to Willcocks and, because it was a recommendation from the
structural engineer of the
project, Willcocks accepted it without
question. Boswell testified that Maat confirmed to him
‘. . . yes you can go out and get
a couple of prices’.
[11] A site meeting took place on 12
August 2003. Boswell and Willcocks were amongst those who attended
the meeting. It is recorded
in the minutes of the meeting that-
‘… the engineer proposed
that the building in the filled areas is piled in view of the
potential settlement. A meeting
is to be arranged with Gauteng
Piling to agree on the extent and to obtain a price.’
[12] The meeting to be arranged was one
between Boswell and Maas, who was Gauteng Piling’s managing
director at the time and
presently its chairman. Boswell testified
that-
‘an order of magnitude costing’
was needed ‘in order to present it to the client to see whether
it was acceptable
or outrageously expensive which should have
required redesigning the house or moving it’.
Maas and Boswell had a good working
relationship and played golf together. The services of Gauteng
piling were engaged in numerous
projects in which Boswell was
involved in the past. Boswell testified that-
‘[t]hey were always called in to
give a design and supply a pile to suit the vertical loads that we
would have supplied’.
[13] On 14 August 2003 Boswell spoke to
Maas telephonically. Maas made a contemporaneous note of the
conversation. That is his
usual practice. From the note it appears
that Boswell told Maas that there was a ‘monstrous’ house
of 1350 square
metres to be constructed on the side of the hill in
Boskruin that requires piling. Maas recorded the name of the company
which
constructed the fill and retaining wall. It is, therefore,
safe to assume that Boswell advised him of the engineered fill that

is present on the site although Maas testified that he has no
recollection of Boswell mentioning or alerting him to the terrace.

Maas recorded pile diameters of 600 mm and of 400 mm. He testified
that the 600 mm pile diameter was probably mentioned by Boswell
as
one that could dislodge floaters or small boulders and that the 400
mm pile diameter was probably suggested by Maas as an alternative

diameter. Boswell does not have a recollection of this discussion.
He testified that because it was ‘not a very big job’

they probably would have discussed it briefly telephonically and that
he would have asked Maas ‘for his range of pile sizes
to
withstand certain vertical loads’.
[14] On 18 August 2003 Boswell, Maas
and a foreman employed by Gauteng Piling, a certain Alston who died
about five years ago, met
on site in order for Boswell to show them
the site. Maas testified that the purpose of the site visit was to
establish that Gauteng
Piling could get its piling equipment onto
site and that the piling platform was firm and level for the drilling
machinery. Maas
testified that Boswell did not point out anything
specifically to them and that they accepted that some of the piles
would be in
the filled area. Nothing on site appeared unusual to
Maas. Although the retaining wall is a large construction and, in
the words
of Butterworth, ‘for all to see’, Maas
testified that he did not notice it. He testified that he did not
gain access
to the property from its western side from where the
retaining wall is visible. What retains the fill, Maas added, was in
any
event of no concern to Gauteng Piling. Boswell has no
recollection of this site meeting but does not dispute that it took
place.
[15] Boswell and Maas spoke
telephonically on 25 August 2003. Maas made one of his
contemporaneous notes of this conversation.
Boswell advised him
that 27 piles were required, that the applicable loads ranged from
150 to 500 kilonewton and that there
was a ‘pile layout’.
On 26 August 2003, Maas on behalf of Gauteng Piling, addressed a
written tender to Boswell for
the design and installation of 27
augered piles of different diameters to carry the vertical loads
supplied by Boswell (150 to
500 kilonewton). Gauteng Piling proposed
the use of augered piles and it furnished the different diameters
suitable to carry the
various specified vertical pile loads. It is
recorded in the minutes of a meeting that was held on 21 October 2010
and attended
by a representative of the architect, Maat and Boswell
that the structural engineer ‘… obtained a price for the
piling’
and that ‘… the employer confirmed that
this work is to be undertaken early next year’.
[16] On 30 March 2004, Gauteng Piling,
this time represented by its general manager, Mr Hennie Bester
(Bester), addressed a second
tender for piling to the main
contractor, Paragon, for the design and installation of 33 augered
piles of 300 millimeter diameter
each to carry the specified
categories of vertical loads. And on 10 May 2004 Gauteng Piling,
again represented by Bester, addressed
a third and final tender to
Paragon, this time for the design and installation of 37 augered
piles of 300 millimeter diameter each
to carry the specified vertical
loads. Boswell testified that there were many architectural
revisions during the design development.
The changes to the number
of piles required and the vertical loads they were required to
withstand as reflected in the three tenders
were according to Boswell
probably brought about by design developments.
[17] Apart from different prices and
schedules of quantities the terms of each tender were identical.
Gauteng Piling’s third
and final tender was accepted by Paragon
in terms of its order dated 30 June 2004 wherein Gauteng Piling was
requested to proceed
with the order for the 37 augered piles as per
the third tender document (the piling subcontract). It is stated in
the opening
paragraph of the third tender that-
‘[f]urther to your enquiry and
based on the information received, we have pleasure in submitting our
tender for the piling
for the above, based on the attached
conditions, in the amount of … R87 552 including V.A.T.’
The tender is ‘based’ on
the SABS 1200F specification and one of its terms is that no
retention money is to be withheld
since any defects are covered under
Gauteng Piling’s ‘products guarantee’, which reads
as follows:
‘The piles are warranted to be
capable of safely withstanding the loads as specified in the piling
contract. Our liability
is limited to in following respects:
(a) To making good any piles which fail
due to our default and the consequent damage to the structure erected
on our piles, including
consequential loss.
(b) Our Liability under this guarantee
and the piling contract cumulatively shall not exceed R2 million (Two
Million Rand).
(c) We shall have no liability in
respect of any claim which has not been made against us in writing
within three years from the
date of completion of the piling works or
any section thereof, whichever shall occur first.
(d) We are not responsible for the
adequacy of the joint between the piles and any structure erected
thereon.
(e) We will not be responsible for any
settlement or defect caused by existing underground workings,
cavities and the like or by
the presence of acids or other
destructive matter in the ground or ground water.
(f) This warranty replaces and
supersedes all other warranties, whether express or implied’.
[18] The written building contract was
concluded between Glynden and Paragon on 14 May 2004 (the building
contract). Reliance is
placed on clause 8.3 of the building contract
for the appointment by the contractor, Paragon, of the subcontractor,
Gauteng Piling.
Powell Boswell and Associates, in terms its plea,
admits the appointment of Gauteng Piling as a specialist piling
subcontractor
and it avers that Gauteng Piling was appointed inter
alia ‘to establish the site and ground conditions and
thereafter to
design the pile system’. It is further averred
that in terms of the structural agreement concluded on 18 June 2003
between
Powell Boswell and Associates and Glynden the scope of duties
of Powell Boswell and Associates included, inter alia, the provision

of a calculation of the structural loads and the preparation of a
pile layout drawing for the foundations. Clause 8.3 of the building

contract, however, recognises the right of Paragon to appoint any
subcontractor ‘to execute the whole or portions of the
works’,
which in terms of clause 1.1.2 read with clause 18 and clause 6.e of
annexure A to the building contract is ‘[t]he
construction work
to be done and the materials to be used in erecting a dwelling house
and outbuildings on the property’
including the piling. The
building contract does not provide for the appointment of a
subcontractor to fulfill any design function
nor does it entitle
Paragon to relieve Boswell of any part of his scope of work as the
structural engineer for the project that
was agreed upon between
Powell Boswell and Associates and the owner, Glynden.
[19] Willcocks and Boswell are ad idem
that the extent of Boswell’s scope of work as consulting
structural engineer in terms
of the structural agreement that was
concluded on 18 June 2003, was to provide a structure for the
architectural envelope shown
on the architect’s drawing, which
responsibility included the foundations for the whole house. It is
common cause that the
contractual responsibility of Boswell vis-à-vis
Glynden regarding the design and specification of the foundations, or
any
other aspect of his scope of work, was not in any way limited or
excluded in terms of the structural agreement nor in terms of any

subsequent agreement reached between them.
[20] Boswell, however, contends that in
instances where a piling contractor is subcontracted on a design and
install basis, the
structural engineer is not responsible for the
design of the piling and the piling contractor assumes responsibility
for any deficiency
in the design of the piles. The mere appointment
of Gauteng Piling as piling subcontractor on a design and install
basis, Boswell
testified, reduced his scope of foundation work and he
thereafter remained responsible only for the conventional
foundations.
Boswell testified that as far as the piled foundations
are concerned his scope of duty was then limited to providing a
calculation
of the structural loads and the preparation of a pile
layout drawing indicating the positions of the piles. Glynden, on
the other
hand, contends that Boswell’s mandate was never
changed and no part of his responsibility was ever excluded. This is
not
a case in which a structural engineer recommended to his client
that another specialist engineer be appointed to undertake a
specialist
aspect of the structural work and such other specialist is
then indeed appointed. It is clear on the undisputed evidence that
Boswell merely recommended to Glynden via Maat that piles be used on
the fill instead of conventional spread footings and that prices
be
obtained for piles of about 600 millimetre in diameter. It is this
recommendation which Glynden accepted. The view that I
take of this
matter, however, makes it unnecessary for me to decide the issue
relating to an amendment of Boswell’s initially
agreed upon
scope of work in relation to the design of the piles. I return to
the nature of Gauteng Piling’s design function.
[21] On 29 March 2004 Boswell issued a
pile layout drawing ‘for approval’. This initial drawing
was not issued to Gauteng
Piling. On 25 June 2004 Boswell issued a
pile layout drawing ‘for construction’. This drawing was
received by Gauteng
Piling before it commenced with the construction
of the piles. The pile layout drawing indicates the position of each
pile and
it contains certain instructions applicable to the
installation of the piles. It contains three columns setting out
each pile
number as depicted on the layout drawing, pile load, and
pile diameter. There is disagreement between Tromp, Ritchie and
Oosthuizen
on the one hand and Boswell, Butterworth and Crous on the
other about whether Boswell’s specification of the pile
diameters
on his pile layout drawing means that he thereby adopted
Gauteng Piling’s diameter design and accordingly involved
himself
in the design function relating to the piles. I also do not
need to decide this issue in the light of the view that I take of
this matter. I accept that Gauteng Piling’s design function
included pile diameter, concrete strength, reinforcement and
length
or founding depths. Tromp agrees with the views of Boswell,
Butterworth and Crous that when a subcontract for piling is
awarded
on a design and construct basis, the structural engineer is
responsible for the calculation of the structural loads and

preparation of a pile layout drawing. I return to the issue whether
the structural engineer is also enjoined to provide the piling

contractor with loads other than structural loads.
[22] Gauteng Piling installed the piles
on 6 and 10 July 2004. It increased the diameter of all the piles
from 300 to 350 millimetres.
Maas testified that the main reasons
for increasing the pile diameter were that some of the piles
specified on the pile layout
drawing had a 400 kilonewton load, which
is more than Gauteng Piling allows for a 300 millimetre diameter pile
as well as the variable
depths that were encountered on site (some of
the augered holes drilled were deep and others shallow). It was then
decided to drill
all the holes to a 350 millimeter diameter in order
not to have to use different auger drills. Gauteng Piling completed
pile report
sheets (that were also furnished to Boswell) showing that
it installed 31 piles. It appears that six piles could not be
installed
due to too shallow refusal rock. All but two piles
(numbers 27 and 15) were drilled to refusal. Drill to refusal, Tromp
explains,
means the auger drill could not advance any further: it
refuses to drill deeper.
[23] The construction of the rest of
the house followed. Its ‘structural system’, Oosthuizen
explains, is ‘from
the top of the roof to the bottom of the
lowest element of the foundations . . . it has a roof at the top and
at the bottom the
lowest elements are the pile feet’. The
‘foundation system’, it is common cause amongst the
expert witnesses,
is the system used to transfer the various loads of
the structure to ground level. It includes the spread footings and
the piles
below the western section of the building. The ‘piling
system’, the expert witnesses agree, consists of three
elements:
piles, pile caps and ground beams. Each pile is
integrally connected to a pile cap above it and the pile cap with a
ground beam
that spans between the pile caps, and these three
elements are embedded in the fill. The vertical loads supplied by
Boswell are
the loads that the superstructure exerts on the piles at
a particular point via a column.
[24] A pile, Day explains, is
essentially a column which is an element of the structure. It is
embedded in the ground and its purpose
is to transfer a given load
from the top of the pile down into the ground. The pile load is
either carried by the length of the
pile and shed into the soil
surrounding the pile (side friction) or the load is transferred to
the bottom end of the pile where
it is shed into the underlying
material (end-bearing). A pile cap, Ritchie explains, is a block of
concrete cast on the top of
the pile which provides a connection for
the reinforcement in the ground beam and in the pile so that a
continuity of reinforcement
is provided from the ground beam into the
pile. The ground beam is typically on the same level as the pile cap
and runs into the
pile cap. Ground beams, in the opinion of Boswell,
have two functions: to hold the piles together and thereby stopping
them from
moving independently and to carry the brick walls
constructed on them. Ground beams span from one pile to another and
transmit
the loads of the walls erected on them into the piles.
Butterworth refers to ground beams rather as pile beams because they
span
between piles.
[25] The piles critical to this action
are piles 19A, 19, 20 and 20A below the western side of the garage
and to a lesser degree
piles 15, 16 and 17 below the eastern side of
the garage. Reinforced ground beams span between the pile caps that
are on top of
each pile. The edges of the garage floor concrete slab
are supported by the ground beams around the garage and the rest of
that
concrete slab is supported by the engineered fill.
[26] Also relevant are piles 18 and 13
on either side of the main entrance door, but eccentric to it. The
main entrance inter alia
comprises a double volume arch that
surrounds the front door. A conventional strip footing below the
front door, which is founded
on the engineered fill, supports the
arch and entrance part of the structure. A ground beam spans between
pile caps 8 and 13 and
the continuity steel continues from pile cap
13 into the strip footing. A ground beam also spans between pile
caps 17 and 18 and
the continuity steel continues from pile cap 18
into the strip footing on its other side. The reinforcement of the
strip footing
ties in with the continuity steel that runs from those
pile caps. The ends of the spread footing are accordingly tied to
the
continuity steel that runs into the pile caps on either side of
the main entrance.
[27] Further relevant is an issue of
eccentricity. Eccentric forces are structural loads additional to
the vertical loads that
are exerted on the piles. These are
structural loads that were not included in the loads which Boswell
furnished to Gauteng Piling.
The brick wall which is constructed on
the ground beam on the northern side of the garage is off-centre or
eccentric in relation
to the centre of pile 15. The load of the
brick wall is not concentrically exerted onto the pile. There is
also eccentricity
on piles 19 and 20 below the chimney wall that is
constructed on the pile beam between those two piles. The effect of
an eccentric
load onto a pile is to bend the pile, to place a bending
moment into the pile. The bending moment needs to be resisted. The
reinforcement
in the pile needs to be designed to accommodate the
bending. The piles in question were designed with nominal
reinforcement and
not for bending.
[28] The Willcocks family took
occupation of the newly built residence on 13 September 2006.
Cracks appeared in the house during
or about 2007. They were
considered not to be unusual and Paragon attended to them. During
February/March 2009 cracking that
was considered more serious
manifested in the western portion of the residence. Investigations
followed in order to determine
the cause of the cracking. Boswell,
Paragon and Gauteng Piling are amongst those who were drawn into the
investigations. The
garage and lounge above it that are in close
proximity to the retaining wall showed signs of major structural
distress. The investigations
revealed that the retaining wall had
moved about 75 mm laterally and vertically. The movement subjected
the piled foundations
below the western end of the house in close
proximity to the wall to lateral and horizontal forces of about 600
tons which they
were not able to resist. They were only designed to
withstand the vertical forces that were calculated by Boswell and
furnished
to Gauteng Piling.
[29] Ritchie testified, and his opinion
in this regard was not challenged, that the visible structural damage
is consistent with
movement of the ground beams, which support the
walls on the western and northern sides of the garage and form part
of the foundation
system of the house, laterally towards the west.
The primary problem is that the ground beams spanning from pile caps
19A to 20A
have moved towards the west. The expert witnesses
consider it further possible that the ground beam on the northern
side of the
garage (spanning from pile cap19A to pile cap 15) and the
one on the southern side of the garage (spanning from pile cap 20A to

17) have also moved laterally to the west. The movement of the
ground beams dragged the walls they support with them separating
them
from the eastern side of the house.
[30] The expert witnesses are ad idem
that the main cause of the deformation and cracking of the building
is lateral and vertical
movement of the foundation system below the
western end of the building. The fill behind the retaining wall,
which forms the terrace
on which the western end of the building was
erected, moved laterally and vertically. Certain of the small
diameter vertical piles
which form part of the foundation system were
unable to resist the combination of vertical and horizontal forces
arising from the
soil movement and structural loading.
[31] With regard to the remedial work
required with regard to the western end of the building, that is the
portion supported by
the foundations below the walls of the garage,
the expert witnesses agree that the integrity of the piles has been
compromised
by the deformation they have suffered and there is
potential of further vertical and lateral movement of the fill. The
remedial
measures to be implemented, therefore, must provide vertical
support and lateral restraint of the foundation system. Appropriate

support needs to be provided to the surround of the front entrance
door and the adjacent floor.
[32] As to the performance expectations
of the retaining wall and the acceptability of the foundation system
used, the expert witnesses
agree that it is common knowledge that
fabric reinforced retaining walls, such as the one constructed on the
western side of the
building, and the fill they retain undergo
horizontal and vertical movements. These movements normally continue
for a period of
years after construction. The expert witnesses agree
that the piled foundation system adopted was not suitable for a site
where
ground movements were expected. Had the movement of the fill
been anticipated from the outset, a different foundation solution

would have been required below the western end of the building.
[33] Some of the expert witnesses,
especially Day and Oosthuizen, also consider the eccentricity that
occurred on the western and
northern sides of the garage a
contributing factor to the visible structural distress. Boswell
testified that he calculated the
eccentric forces and he considered
the effect of the eccentric moments on each pile and column above it
to be very minor. The
twisting effect of the eccentricity is
distributed into the pile and into the column above it. In addition
the structure is on
a designed terrace which was compacted in
engineering terms to a 95% compaction level, which, according to
Boswell, is a fairly
high compaction level and much of the load would
be transferred to the ground by the footing the brickwork is sitting
on. The
eccentric moments are thus also resisted by the ground
bearing pressure of the ground below the footing, which share the
moments
with the piles, the columns above them and the ground
below. Ritchie and Butterworth each calculated the effects of
eccentricity,
and they also consider them not to be significant and
not a cause of the structural damage. Tromp did not make any
calculations
but he too agrees that the bending moments placed on
piles 19 and 20 are not significant and that the eccentric forces
might not
have been a cause of the damage. Day disagrees. The fill,
in his opinion, due to settlement provides a less rigid support than

the piles in resisting the eccentric forces. Day did not calculate
the effects of the eccentric loads on the piles and he concedes
that
the proximate cause of the structural damage is the movement of the
soil which dragged the ground beams, pile caps and piles
with it.
The eccentricity of the western wall, in the opinion of Oosthuizen,
jeopardizes the structural integrity of the piles
as specified and
installed. But he too did not calculate the effects of the
eccentricity. There is in my view no cogent evidence
of the
causative effect of the eccentric loads on piles 15, 19 and 20.
[34] The expert witnesses are agreed on
a technically sound and correct remedial foundation system that
should be adopted and constructed
below the western end of the house.
The system comprises ten percussion board piles of 430 mm diameter
in a line below the western
side of the garage. The ground beam is
to be anchored back into the hillside to restrain the lateral forces
that are expected.
[35] I now turn to the main design
errors that were made. The piles were specified and designed only
to resist the concentric
vertical or structural loads which Boswell
supplied to Gauteng Piling. The piles on the western end in the area
where the deep
fill occurs ought to have been specified and designed
not only to carry vertical loads, but to also resist the lateral and
horizontal
loads imposed upon them as a result of the movement of the
retaining wall and fill. The expert witnesses agree that the small
diameter vertical piles are incapable of resisting the lateral load
or movement to which they were subjected in the area where the
deep
fill occurs. Oosthuizen expresses his opinion in this regard as
follows:
‘The element that takes 400
kilonewtons as a pile will never resist the man-made fill. The
man-made fill is man enough to
move much bigger piles than a 400
kilonewton pile and many of the piles were only 200 kilonewtons. So
the man-made fill is a strong,
strong force in nature. It will move
almost anything that you plant in it’.
[36] The expert witnesses are
essentially ad idem on the foundation system below the western end of
the house that in terms of accepted
standard practice ought to have
been adopted at the outset to resist the vertical and horizontal
forces. Butterworth prefers not
to give a definitive opinion on the
issue. But Tromp, Ritchie, Crous and Day are of the opinion that an
anchored pile foundation
system as opposed to the pile foundation
system that was adopted ought to have been designed and constructed
below the west end
of the garage. The appropriate foundation system
required bigger auger piles and tie backs. The required tie backs
are, according
to Ritchie, typically reinforced bars cast in concrete
for corrosion protection and anchored into a block of concrete that
is sunk
into stable ground. Because it is commonly known that a
retaining wall, such as the one constructed in this instance, moves
with
time, such movement, in the opinion of Ritchie, ought reasonably
have been anticipated and steps ought to have been taken to anchor

the ground beam spanning from pile cap 19A to 20A against movement
towards the west by means of horizontal anchors to tie it back
into
the stable ground behind the manmade fill. Ritchie prefers not to
comment on the piling portion of the foundation system
below the west
end of the building that ought to have been chosen in the first
place, but he is of the opinion that from a structural
point of view
the absence of adequate lateral ties, structural ties, is the primary
cause of the problem.
[37] Ritchie and Day are of the opinion
that the tie-back solution forms part of the structural engineer’s
responsibility
and design function. The single dissenting opinion of
Crous that the tie-back solution falls within the design
responsibility
of the piling subcontractor is not logically
defensible and contrary to the undisputed evidence. It is common
cause that the
foundation system comprises three elements: piles,
pile caps and ground beams. Gauteng Piling only assumed the design
function
of a single element, the piles. The design of the other two
elements remained within Boswell’s scope of work. It is the

ground beam that ought to have been tied back. Furthermore, as Day
explains, the three elements of the foundation system are integrally

connected and embedded in the fill. The movement of the fill
generated lateral and horizontal forces against all three elements

and caused them to move.
[38] Tromp, Ritchie and Day are ad idem
that the damage to the garage floor, which indisputably was designed
by Boswell, was caused
by settlement of the fill and is unrelated to
the design and performance of the piles. The rest of that part of
the structure
is founded on piles whereas the garage floor concrete
slab is founded on fill. The edges of the garage floor concrete slab
are
supported by the ground beams around it and the complication of
the vertical settlement of the fill was that the middle of the slab

sagged. It would, in the opinion of Ritchie, have been prudent of
Boswell to have designed a suspended slab that is supported
by the
ground beams around it in order to ensure that the slab remains part
of the building structure. Because its span would
have been
excessive a pile in the centre of the garage floor ought to have been
considered.
[39] Tromp, Ritchie and Day are also ad
idem that the visible structural damage to the main entrance and the
deflection of the arch
around the front door show that the strip
footing that supports the arch, which indisputably also formed part
of Boswell’s
responsibility and design function, settled with
the fill material below it and is unrelated to the design and
performance of the
piles. Ritchie is of the view that settlement of
the fill has caused a rotation of that footing which in turn caused
the double
volume arch around the front door to rotate with it and it
is now out of plumb. According to Ritchie, a pile in the middle of
that strip footing was required. Day is of the opinion that there is
differential settlement below the spread footing part of the

structure and the part that is tied to the piles by means of
continuity steel. Butterworth is of the opinion that the strip
footing
foundation was unable to deal with the deep seated settlement
in the soil.
[40] Glynden instituted this action
against Powell Boswell & Associates (the first defendant),
Paragon (the second defendant)
and Gauteng Piling (the third
defendant). The claim against Paragon was founded on the building
contract. Because Paragon was
placed under final liquidation before
the commencement of this trial, Glynden elected not to pursue the
claim against Paragon and
it was withdrawn at the outset of these
trial proceedings.
[41] The claim against Powell Boswell &
Associates is founded on the structural agreement. Essentially, the
claim against it
is that it breached the structural agreement in that
Boswell failed to exercise the required professional skill, care and
diligence
in the performance of his mandate by failing to ensure that
pile foundations used in the construction of the residence were
adequate,
suitable and appropriate for the purpose for which they
were intended. He failed, so it is alleged, inter alia to take the
ground
conditions into consideration and to specify and design, or
approve, the correct pile specification or to ensure that the correct

pile specification was used in the construction of the pile
foundations.
[42] Powell Boswell & Associates
denies that it owed Glynden any contractual obligations in respect of
the design and specification
of the piles. Boswell maintains that,
as far as the piles are concerned, his provision of professional
consulting engineering
services to Glynden was limited to the
calculation of the structural or vertical loads and the provision of
a pile layout drawing.
It was Gauteng Piling, according to Boswell,
which was appointed by Paragon as a specialist piling contractor to
design and install
piles that were adequate, suitable and appropriate
for the purpose for which they were intended. Boswell contends that
Gauteng
Piling failed to take into consideration in the design and
installation of the piles the expected lateral and vertical forces
which
would occur as a result of the movement of the retaining wall.
[43] The claim against Gauteng Piling
is founded in delict. It falls, in my view, within the ambit of pure
economic loss. See:
Telematrix (Pty) Ltd v Advertising Standards
Authority SA
2006 (1) SA 461
(SCA) para 1; Trustees, Two Oceans
Aquarium Trust v Kantey and Templer (Pty) ltd
2006 (3) SA 138
(SCA)
para 14 and 145G-146A; and Kohler Flexible Packing (Pinetown) (Pty)
Ltd v Marianhill Mission Institute and others
2000 (1) SA 141
(D) at
145F-G. The negligence that caused Glynden’s loss is alleged
to be Gauteng Piling’s failure to have ensured
that the pile
foundations were built in a proper and workmanlike manner, that
appropriate materials and methods were used in the
construction and
erection thereof, that they were erected and installed according to
suitable specifications and that they were
able to carry their design
load. It is alleged that Gauteng Piling was under a legal duty not
to act negligently. In other words
the case against Gauteng Piling
is that it wrongfully and negligently caused Glynden pure economic
loss.
[44] Gauteng Piling denies any
negligence on its part. It maintains that it designed the piles in
accordance with the design specifications
received from Boswell. It
was Boswell, according to Gauteng Piling, who negligently failed to
advise Gauteng Piling of the relevant
terrain parameters and possible
consequences thereof on the piles, who failed to assess the long-term
stability and integrity of
the structural design under his control,
and who failed to take into account the likelihood of horizontal and
vertical movement
of the engineered fill behind the retaining wall,
as a result of which the piling specifications were ineffective.
Gauteng Piling
further denies that it owed Glynden a legal duty in
circumstances where Glynden elected to arrange its affairs in regard
to the
construction of the residence by concluding a building
contract with Paragon in terms of which Gauteng Piling was in turn
appointed
as a subcontractor. If it is found that Gauteng Piling
acted negligently and owed Glynden a legal duty, then it contends
that
its liability cannot be more onerous than stipulated in the
piling contract that was concluded between it and Paragon (see:Viv’s

Tippers (Edms) Bpk v Pha Phama Staff Service (Edms) Bpk h/a Pha Phama
Security
2010 (4) SA 455
(SCA)).
[45] The opinions of especially Day and
Oosthuizen regarding the appropriateness of the pile design adopted
by Gauteng Piling to
withstand the relative low loads specified by
Boswell and its installation of the piles in a proper and workmanlike
manner have
in my view not been refuted. They are of the opinion
that Gauteng Piling assumed standard and accepted parameters in its
design
of the piles and that its assumptions were verified and met at
the time of the installation of the piles (there were no assumptions

made with regard to the engineered fill or the retaining wall in the
design of the piles, a matter to which I return later on in
this
judgment). It is undisputed that the SABS 1200 F specification of
the South African National Standards (formerly the South
African
Bureau of Standards (SANS)) used by Gauteng Piling is a generic
specification for piles that is normally followed in South
Africa.
The pile design and specifications (pile diameter, concrete strength
and reinforcement) adopted by Gauteng Piling, in
the opinion of Day
and Oosthuizen, were appropriate for the relatively low loads
specified by Boswell. All the piles were drilled
to refusal below
the level of the fill and Day is of the opinion that there was
adequate penetration into the soil. Day and Oosthuizen
are of the
opinion that the manner in which the piles were installed and the
depths to which they were installed are appropriate.
The piles as
installed in their opinion are competent to carry their design loads
of between 200 to 400 kilonewtons.
[46] Tromp’s opinion that the
reinforcement used does not meet the requirement of the SANS code,
his concern about the variability
of the founding depths of the piles
below the western end of the house (pile 19A (10,5 metres), pile 19
(17,3 metres), pile 20A
(11,6 metres) and pile 20 (13,4 metres))
which, according to Tromp, might be indicative that refusal of one or
more of these piles
occurred on a bolder or a large slab of gravel
that could cause differential settlements of these piles, and Crous’
concern
about the ability of a few short piles to carry their design
loads have in my view been addressed by Day’s opinions on these

aspects.
[47] Gauteng Piling used 4Y12
reinforcement in the piles. Tromp explains that this means that 4
bars high tensile steel (Y) of
12 millimetre in diameter were used.
The requirement of the SANS code has not been met. Day explains that
reinforcement in piles
is a matter not clearly specified in the SABS
or SANS codes. Reference is accordingly made to the SANS Code for
Columns of Concrete
Design which deals with the reinforcement of
columns (SANS 0100). That code requires a minimum reinforcement of
.4% of the concrete
area. The piles in question were designed with a
.47% reinforcement of the concrete area. The piles also comply with
another
‘rule of thumb’, which according to Day is
typically used in pile design: the reinforcement must exceed .8% of
the
concrete area that is required to carry the vertical load. The
SANS Code for Columns of Concrete Design requires four bars as
reinforcement for a square column and six for a circular column.
However, the Frankie Pile Handbook stipulates four bars are typically

used in a smaller diameter pile. (This text book according to Day’s
unchallenged opinion is generally regarded as one of
the best
handbooks on pile installation in South Africa and according to
Oosthuizen’s unchallenged opinion is an industry
standard of
good engineering practice for the design function undertaken by
piling contractors, such as Gauteng Piling.) Day
is accordingly of
the opinion that the four Y12 bars used as reinforcement are
appropriate and comply with the norms in the South
African piling
industry.
[48] Day is of the opinion that the
variability of the founding depths of piles 19A, 19, 20 and 20A is
not a cause of concern, inter
alia because granites which occur in
the northern suburbs of Johannesburg ‘are notoriously variable’
and the west wall
of the garage shows no sign of distress (diagonal
cracking) as a result of differential founding conditions.
[49] The short piles to which Crous
referred, except for two below the eastern side of the garage, are
situated away from the area
affected by the movement of the fill.
They are situated in areas where cracking of the structure has not
manifested. The structural
damage occurred mainly on the western
side of the garage with, according to Day, sympathetic damage on the
eastern side of the
garage. The cracking only manifested about two
to three years after completion of the structure. A load is applied
for a maximum
of 24 hours when a pile load test is performed. There
was accordingly, in the opinion of Day, a period of between two and
three
years during which the piles proved their adequacy to support
the weight of the house. Crous also conceded that the piles have

carried their load safely for a number of years .
[50] The evidence, in my view, does not
establish on a balance of probabilities that Gauteng Piling did not
design the piles according
to suitable specifications to carry the
vertical loads supplied by Boswell or that the piles were not built
in a proper and workmanlike
manner using appropriate materials and
methods.
[51] Turning to the liability of Powell
Boswell & Associates, it is common cause amongst the expert
witnesses that vertical
and horizontal movements of a retaining wall
and fill which it retains and the forces exerted by a fill fall
within the expertise
of geotechnical experts, such as consulting
geotechnical engineers, soil mechanical engineers or engineering
geologists. Boswell,
by his own admission, is not a specialist in
geotechnical issues. As a structural engineer, Boswell, in the
opinion of Tromp,
would have understood that there would be lateral
movement, but he would not have known the exact quantities thereof.
Crous holds
a similar view. Boswell testified that generally both a
structural engineer and a geotechnical engineer would take part in a
project
if the ground conditions are not favourable. The ground
conditions on the site, it is common cause, were not favourable.
[52] It can, on the totality of the
evidence presented, not be disputed that the founding conditions of
the site were not properly
recognised or appreciated, either by
Boswell or by Gauteng Piling. It was according to Tromp not
properly realised that the fill
and retaining wall could result in
additional loads being exerted on the piles. The lateral and
vertical movement of the foundation
system below the western end of
the building has resulted mainly from the displacement and
deformation of the retaining wall, which,
in the opinion of Tromp,
ought to have been expected. The movement that occurred, in his
opinion, is realistic. The variable
site conditions were not fully
understood or identified. Neither Boswell nor Gauteng Piling, also
in the opinion of Day, foresaw
the lateral and horizontal movement of
the fill that was going to arise as a result of the movement of the
retaining wall. There
was, according to Day, not a realization that
the fill had the potential to move laterally and horizontally and it
was not taken
into account by either of them. The effects of the
retaining wall were not realised. Neither Boswell nor Gauteng
Piling, in the
opinion of Day, realised the implication of the
proximity of the piles below the western end of the house to the
retaining wall.
These views are uncontroverted and similar views
were expressed by some of the other expert witnesses.
[53] Boswell testified that at the time
he was ‘to a certain extent’ familiar with the
characteristics of a Löffenstein
wall. He did not know the
extent to which lateral movement of the retaining wall is expected.
He was only aware that there would
be slight deformation of the wall
after construction. He did not anticipate lateral or vertical
movement of the soil to the extent
that occurred.
[54] Tromp, Ritchie, Day and Oosthuizen
share the opinion that in relation to the design of foundations,
whether or not the design
of piles is within the scope of work of the
structural engineer, he is nevertheless required to obtain a
geotechnical report on
the founding conditions of the applicable
structure in question, especially on a complex site such as the one
in question. Although
the structural engineer invariably does not
design the piles he must understand his own function and be aware of
the forces that
will come down onto his overall system. In the words
of Oosthuizen: it is the structural engineer responsible for the
design
of the foundations of a building who is duty bound to take all
relevant considerations into consideration, including the possibility

of lateral or other loads that will impact on the piles. Boswell, in
the opinion of Tromp, Ritchie, Day and Oosthuizen, reasonably
ought
to have called for the expertise of a geotechnical consultant, who
would have investigated the ground conditions and made

recommendations to him on an appropriate foundation system.
[55] The structural engineer does not
conduct the investigation, but he needs to bring an appropriately
qualified professional on
board to conduct the investigation. It is,
in the words of Oosthuizen, the ‘only tool’ at the
disposal of the structural
engineer that allows him ‘to deliver
a deformation free building’. A geotechnical foundation
investigation would in
the opinion of Oosthuizen ‘precisely’
have revealed the anticipated movement of the retaining wall and
fill. It includes
the assessment of horizontal stability. It would,
according to Oosthuizen, have made recommendations about the piling
system and
the need for horizontal anchors. It is instructive to
refer to further passages of Oosthuizen’s evidence in this
regard:
‘A geotechnical investigation
would precisely have revealed that. Because a geotechnical
investigation considers all physical
attributes of the site. It is
an amazingly thorough analysis from the top of the terrace down into
mother nature and it is an
enormous comprehensive assessment of all
the physical attributes on the site and without it I remain in the
dark.’
According to Oosthuizen a geotechnical
investigation must even be done in a ‘mielie’ field that
is flat and it must
especially be done on a complex site. The
geotechnical engineer, in his opinion, ‘would have scratched
his head about the
complexity of this site‘.
[56] Boswell, Butterworth and Crous are
of the opinion that the structural engineer is only responsible for
and obliged to furnish
the structural loads to a piling contractor.
It is the responsibility of the piling contactor, and not that of the
structural
engineer, to take account of all the other loads to which
the piles might be subjected in its design of the piles. The piling
contractor as designer of the piles is responsible for determining
the other forces that a pile might be subjected to, such as the

forces that developed in this case as a result of the movement and
settlement of the fill. The piling contractor in their opinion
must
conduct its own geotechnical investigation if one had not been
undertaken.
[57] I accept the opinions of Tromp,
Ritchie, Day and Oosthuizen on these issues. Their views of accepted
engineering practice are
founded in logic are objectively supported
by the South African Bureau of Standards Code of Practice for the
Design of Foundations
for Buildings (SABS 0161-1980), which code of
practice, according to the unchallenged opinion of Day, sets out what
is regarded
as good practice or a norm within the industry and
provides a yardstick against which the design or execution of an
engineer’s
mandate can be judged. SABS 0161, in the opinion of
Day, is a codification of processes and standards that have been
developed
over many years of experience and is regarded as generally
accepted good engineering design practice.
[58] SABS 0161, in terms of its clause
1.1,
‘… covers the design, in
accordance with the National Building Regulations, of foundations for
buildings …’.
It is stated in its ‘Preface’
that the contents of this code of practice have been prepared ‘on
the following
basic assumptions of competence:
‘(a) The owner appoints a
designer who is suitably qualified by training and experience to
execute the design of a particular
project in accordance with the
design method adopted and whose qualifications and ability are
acceptable to the local authority.
(b) Where the designer appoints any
person to carry out specialized design work or other functions, the
designer must ensure that
such appointee is suitably qualified by
training and experience to execute such work or functions.
(c) Where the designer does not carry
the supervision of the construction work through to completion, the
owner is assumed to be
responsible for ensuring that the construction
work is carried out in accordance with the design requirements and to
the satisfaction
of the local authority unless he (the owner)
appoints some other person who is suitably qualified to supervise the
construction
work.’
[59] A ‘designer’, in terms
of clause 2.1, is-
‘[i]n relation to the erection of
a building or part of a building, a competent person appointed by the
owner and approved
by the local authority to be responsible for the
design of the foundations, shoring, underpinning, earthworks,
excavations and
other related aspects of such building’.
[60] Clause 3 inter alia deals with
site investigations. The following is inter alia stated in clause
3.1.1:
‘It is the responsibility of the
designer to ensure that, prior to the commencement of any design work
for a building proposed
to be erected, the site or area as defined by
the owner on which such building is to be erected is investigated to
ascertain the
subsoil conditions, the geological structure, flood
lines in low-lying areas, and the underground water conditions, in
order to
(i) assess the suitability of the site
for the building proposed to be erected;
(ii) …
(iii) foresee and provide against
difficulties that may arise during construction because of ground and
other local conditions;
(iv) determine the extent to which the
design of the excavation works, the foundations, and any earthworks
will be affected by or
will affect such conditions.
. . .
Where site conditions are unknown or
where special circumstances apply, the site investigation will be
carried out in accordance
with 3.1.2.
. . .
It is considered essential that there
should be, for even the simplest building, thorough knowledge of the
soil and groundwater
conditions on the proposed site in order to
minimize or eliminate the possibility of differential movement.
. . .
All site investigations must be
systematically carried out and must be as comprehensive as the site
development project warrants
…’
[61] Clause 3.1.2 deals with a detailed
site investigation. It reads inter alia as follows:
‘A detailed site investigation
must be carried out on any site where a building is to be erected and
where
(a) the soil conditions are unknown, or
(b) expansive or collapsing soils are
present . . .’.
…
The designer will appoint a person
responsible for conducting such investigation. Such person shall
specialize in geotechnical
work, shall be acceptable to the local
authority, and shall be competent in the particular field of
investigation undertaken.
The person conducting the site
investigation must ensure that a report is prepared and lodged with
the designer. Such report must
contain an adequate description of
soil profiles, information on groundwater conditions, the results of
soil tests, information
on the presence of expansive or collapsing
soils and the possibility of the formation of sink-holes, and
recommendations regarding
the type and design of the foundations and
any special measures required during construction, together with any
additional information
that may be deemed necessary.’
[62] The following is inter alia stated
in clause 3.1.3:
‘Because of the wide variety of
soil types and conditions that can be encountered, it is essential
that a site investigation
be carried out prior to the commencement of
design work, regardless of the type of building to be erected.’
[63] Clause 5.5.2 reads as follows:
‘Ground Subject to Movement:
Where the site investigation required in 3.1, or previous experience
in the area concerned,
indicates that the subsoil consists of made-up
ground, expansive soils, or collapsing soils or is dolomitic or
contains undesirable
excavations or cavities, or is affected by other
conditions liable to cause excessive movement, it is the
responsibility of the
designer to ensure that a report is prepared
detailing the conditions encountered, the extent of the movement
likely to be experienced,
and the measure to be taken to accommodate
such movement.’
[64] Tromp, Maas, Day and Oosthuizen
are ad idem that SABS 0161 applied to Boswell as the structural
engineer, who was the designer
within the contemplation of its
provisions. Ritchie, Butterworth and Crous are of the view that the
provisions of SABS are also
applicable to Gauteng Piling insofar as
the design of the piling is concerned. Boswell is of the view that
SABS 0161 only applied
to him in respect of the conventional
foundations that he designed, namely the spread footings and strip
footings, and to Gauteng
Piling in respect of the piles it designed.
[65] The plain wording of the relevant
provisions of SABS 0161 as well as the undisputed facts of this case
support the view of
Tromp, Maas, Day and Oosthuizen with which I
agree. It is common cause that Boswell was the only engineer
appointed by Glynden
in respect of the erection of the building and
that he was responsible for the design of the foundations of the
building. Boswell
was the only competent person appointed by the
owner and approved by the local authority to be responsible for the
design of the
foundations. Gauteng Piling was not appointed by the
owner, Glynden, it was not approved by the local authority and it did
not
design the foundations. It only designed one of the three
elements of the piling foundation system that was chosen by Boswell.
[66] Section 3.1.1 of SABS 0160
requires that a site investigation be carried out prior to the
commencement of design work at the
commencement of the project. I
agree with Day that this requirement pertains to the planning and
conceptualising phase and not
the implementation phase of the
project. Gauteng Piling can discharge its obligations to investigate
the subsoil conditions, confirm
its assumptions and ensure that the
subsoil is capable of supporting the piles during the implementation
stage.
[67] It is undisputed that given the
existence of the retaining wall and fill ‘special
circumstances’ applied to the
site within the contemplation of
clause 3.1.1, which required a detailed investigation in accordance
with clause 3.1.2. The person
to be appointed by the designer in
this instance would, according to Tromp, be a geotechnical engineer
or an engineering geologist
competent in foundation investigations
and the ground and topographical conditions encountered at the site.
Boswell agrees that
the person envisaged to undertake the
investigation would typically be a geotechnical engineer.
[68] Boswell, therefore, ought to have
appointed a competent person specialising in geotechnical work to
undertake the detailed
site investigation envisaged in SABS 0161
prior to the commencement of any design work. This, it is common
cause, he failed to
do.
[69] Boswell, however, maintains that
he was only duty bound to conduct a site investigation in relation to
his design of the strip
footings and spread footings, which site
investigation, he says, falls outside the engineered fill. A
geotechnical investigation,
he contends, was not required for the
foundations for which he was responsible. He testified that he
undertook the site investigation
required of him: he had regard to
the FSSE document (the specification issued for tenders prior to
construction of the fill and
retaining wall) and he assumed that the
design specifications of the fill and retaining wall had been met
during construction because
it would have been senseless to
investigate what a geotechnical engineer designed; the rock was
visible from the surface; and
a few test holes were drilled outside
the fill area. Boswell’s view is supported by Butterworth, who
is also of the opinion
that Boswell’s scope of work did not
require a detailed site investigation. The investigation, in his
opinion
, could only have shown that there was
rock on the one side and an engineered fill on the other side. I
find these contentions
untenable in the light of my earlier findings
and for the reasons that follow.
[70] Boswell’s evidence about his
assumption that the design specifications of the engineered fill had
been met is in conflict
with his evidence that one of the factors
that prompted him to recommend piling is that he had never been given
any report to the
effect that the engineered fill had been built
according to the specification. Within that context he testified
that he ‘was
more concerned with the fact that he had not been
given any information as to how the fill was compacted and he
therefore did not
wish to take the risk and piling solution seemed
more applicable and Joubert agreed’. Tromp is of the opinion
that although
the FSSE specification provides geotechnical
information on the nature of the fill and the specified materials of
the fill and
of the design of the wall, it does not inform what was
eventually used and is not necessarily an indication of what was
actually
achieved during construction. One cannot, in his opinion,
by having regard to that document make any assumptions as to what had

actually been achieved during construction. A geotechnical
investigation is required. Butterworth also says that the FSSE
document
is a specification for tenderers and no indication of what
had actually been achieved during the construction of the retaining
wall and engineered fill. Crous also says that verification is
required as to whether the FSSE specification has been met. It,
in
my view, follows logically.
[71] Moreover, the FSSE specification
did not alert or advise Boswell of the anticipated extent of the
movement of the retaining
wall and of the soil it retains and of the
measures required to resist the resultant forces, as it is undisputed
that the investigation
prescribed in terms of SABS 0160 in all
probability would have revealed. As Oosthuizen said:
‘The need of a foundation
investigation to determine the parameters of foundation design is
completely a different investigation
to what was constructed or the
project specification for the construction. It is not the same
thing, it is comparing apples with
pears’.
[72] Boswell was also not only
responsible for the design of foundations outside the fill area as he
would have it. He was also
responsible for the design of two of the
three elements of the pile foundation system within the fill area,
namely the ground beams
and the pile caps, and he was responsible for
the design of the strip footing below the front entrance and of the
garage concrete
slab, also within the fill area. He, on his own
version, also relied on the density of the fill to counter the
eccentric forces
on piles 19, 20 and 15.
[73] Boswell testified that he did not
tie back the ground beam below the western end of the structure into
the natural hill or
rock because he did not anticipate the lateral
movement that occurred as a result of the movement of the retaining
wall that dragged
the piles laterally. He expected the fill material
and the retaining wall to be sufficient to cater for horizontal
movements.
Boswell considered his design of the strip footing below
the front door to have been adequate and he assumed that no dramatic
movement of the fill material would occur. He also did not expect
significant settlement in the area below the garage concrete
slab.
He made the assumption that the terrace was adequately designed with
high compaction requirements, which would, according
to his
assumption, not have settled more than any surface bed of any garage
or any ground floor slab of a building or home. Had
Boswell
fulfilled his professional duty that he in terms of the structural
agreement owed to his client by having appointed a competent
person
specialising in geotechnical work to undertake the detailed site
investigation envisaged in SABS 0161, his expectations
and
assumptions would on a balance of probabilities have been proved
wrong and he would have been advised of the expected soil
movements
and settlements and resultant forces and loads.
[74] Furthermore, the ineluctable
inference is that Boswell’s failure to have appointed a duly
qualified geotechnical engineer
to undertake the prescribed detailed
site investigation and his resultant failure to have fully
appreciated the effect of the retaining
wall and the implication of
the proximity of the piles below the western end of the structure to
the retaining wall, resulted
in Boswell not furnishing Gauteng
Piling with adequate and appropriate project specifications, either
on his pile layout drawing
or in writing or in discussion with
Gauteng Piling. Crous describes Boswell as the principal design
consultant. It was, in the
unchallenged opinion of Crous, within the
responsibility of Boswell as the structural engineer of the project
to prepare a ‘design
brief’ for Gauteng Piling.
[75] Tromp, Ritchie, Day and Oosthuizen
share the opinion that given the terrain parameters the information
provided by Boswell
to Gauteng Piling was inadequate. Gauteng
Piling, in the opinion of Tromp, was not called upon to provide
lateral support. The
norm in the engineering profession, according
to Tromp, is for the structural engineer to provide a geotechnical
report to the
specialist piling contractor. Boswell, in the opinion
of Tromp, was remiss in not at least having forewarned Gauteng Piling
of
the potential for other loads and by not instructing it to request
geotechnical input.
[76] It is in the opinion of Ritchie no
excuse for a structural engineer to say that he did not include
lateral loads on his pile
layout drawing because he is not a
geotechnical expert or an expert in soil conditions. The structural
engineer should have consulted
an expert who could have provided him
with that information. A structural engineer, in the opinion of
Ritchie, ought to discuss
the site parameters and the potential
effect of lateral forces with the pile designer. A geotechnical
engineer, if appointed,
ought to be involved in the discussion.
[77] It is according to Day the norm
within the industry to express project specifications explicitly.
Boswell was obliged to
impart information on which the tender needs
to be based. Day is of the opinion that if a structural engineer,
such as Boswell,
who has provided a vertical load table on his pile
layout drawing, wishes a piling contractor, such as Gauteng Piling,
to take
responsibility for determining additional loads in the form
of horizontal loads and down drag on piles, then he ought to have
specified
the requirement expressly. It was, in the opinion of Day,
Boswell’s obligation to ensure that loads additional to those

which he specified, were taken into account by Gauteng Piling. He
should have informed Gauteng Piling that down drag and horizontal

loads should be taken into account. That, in Day’s opinion,
‘would be the trigger’ for a piling contractor,
such as
Gauteng Piling, which does not have its own design office, to
actually employ a geotechnical consultant.
[78] Oosthuizen is also of the opinion
that it is accepted standard practice that when a structural engineer
calls on a piling contractor
to design piles, he should provide the
piling contractor with comprehensive specifications. The piling
specification provided
by Boswell was, in Oosthuizen’s opinion,
fully defective in terms of the terrain requirements. No project
specification
other than vertical loads was provided to Gauteng
Piling. No specification relating to horizontal and lateral loads
was given.
There is, according to Oosthuizen, an onus on the
structural engineer to communicate all physical attributes upward to
the project
manager and downwards to the piler. A piling contractor,
such as Gauteng Piling, is in the opinion of Oosthuizen-
‘… simply a calculator of
the area of concrete required to withstand the given load. He has
not the ability to do
anything else. That is all that he is going to
do. If I am the structural engineer and I give him that load that is
all he is
going to do for me. I cannot expect him to do more. If I
needed him to do more, I had to instruct him to do more by way of the

project specification. He cannot do more out of his own.’
[79] It is in my view no answer to the
views expressed by Tromp, Ritchie, Day and Oosthuizen to say, as
Boswell, Butterworth and
Crous do, that site parameters and the
likelihood of loads other than vertical loads are not specified on a
pile layout drawing
by a structural engineer or even discussed with
the piling contractor because the structural engineer is not an
expert in geotechnical
matters. It was Boswell’s failure to
have complied with his responsibility of calling for the required
geotechnical investigation
prior to the commencement of his design
work that resulted in him not adequately specifying or notifying
Gauteng Piling of all
the parameters it needed to take into account
in its design of the piles. This also, in my view, resulted in
Boswell not being
in a position to adequately scrutinize Gauteng
Piling’s design proposal.
[80] Tromp is of the opinion that
Boswell had the responsibility to subject the design provided to him
by Gauteng Piling to a high
level scrutiny before the contract was
signed. Day is also of the opinion that Boswell, as the person who
is responsible for
integrating those piles into the remainder of his
design, ought to have applied his mind and considered whether the
other loads
had been taken into account by the pile designer. Day is
further of the opinion that a simple calculation, which any
structural
engineer is able to make, would have informed Boswell that
the piles as tendered with or without tie backs into the natural hill

would not resist the lateral loading. The dissenting opinion that a
structural engineer is no expert in geotechnical matters and
not
equipped to scrutinize the work of another expert who has been
appointed, does in my view not refute the opinions of Tromp
and Day
relating to the structural engineer’s obligation in this
regard. Had the appropriate geotechnical investigation
been
undertaken prior to the commencement of any design work, Boswell
would on the probabilities have been advised of the other
loads and
received recommendations regarding the type and design of appropriate
foundations. When integrating these small diameter
piles into the
remainder of his design he probably then would have realised how
shockingly inappropriate they were to withstand
all the applicable
loads. Boswell concedes that as a professional consulting engineer
he is duty bound to protect his employer’s
interests.
[81] Powell Boswell and Associates,
therefore, breached the structural agreement in that it failed to
exercise the required professional
skill, care and diligence in the
performance of its mandate as a result of which Glynden suffered the
damages to which I return.
[82] I now return to the question of
negligence on the part of Gauteng Piling. Tromp is of the opinion
that there also rested an
obligation on Gauteng Piling to have
obtained a geotechnical investigation report from the structural
engineer or to have undertaken
or requested the undertaking of an
appropriate geotechnical investigation, in the absence of one having
been undertaken. Boswell,
Butterworth and Crous are of the opinion
that such obligation was the primary obligation of Gauteng Piling and
not of Boswell.
Gauteng Piling, in their opinion, was obliged to
take the expected lateral and vertical forces which would occur as a
result of
the movement of the retaining wall and fill into
consideration in the design of the piles. Tromp and some of the
other expert
witnesses are further of the opinion that the
topography, fill and retaining wall should have set off warning bells
for Gauteng
Piling. It is common cause that Gauteng Piling did not
recognize the problems associated with the retaining wall and fill,
especially
the implication of the proximity of the piles below the
western end of the house to the retaining wall.
[83] Given the responsibility of a
structural engineer to require the undertaking of an appropriate site
investigation of a complex
site such as the one in question prior to
the commencement of any design work being undertaken, his
responsibility to provide the
piling contractor with comprehensive
specifications, that a structural engineer’s design can take
the horizontal loads back
into the remainder of the structure instead
of into the piles, the different services rendered by different
piling companies, the
nature of the design function that Gauteng
Piling was instructed to undertake, and the more limited site
investigation that Gauteng
Piling needed to undertake to fulfill that
mandate, lead me to the conclusion that the evidence in all the
circumstances does not
establish that Gauteng Piling’s conduct
did not conform to the legally required standard of care. I am of
the view that
upon the facts of this case Gauteng Piling cannot
reasonably be expected to have taken precautionary steps when it was
confronted
with the close proximity of the western end piles to the
retaining wall.
[84] It appears from the evidence of
Day that piling companies do not all offer the same design services.
Some piling companies
have design offices and employ professional
design engineers. Others, such as Gauteng Piling, do not have a
design office and
the design they undertake is a narrow form of
design, which in the words of Day is a ‘simple process’
of ‘determining
the size of the pile which is required to
resist the specified load and that is the process of looking at the
structural integrity
of the pile and the means by which it sheds its
load to the soil’ and in the words of Oosthuizen ‘…
a very narrow
function of fleshing out the cross-section of concrete
required to resist a pile load, of inserting the minimum
reinforcement,
and of choosing the type of pile’. Gauteng
Piling, in the opinion of Day and Oosthuizen, does not offer a
service beyond
that. Gauteng Piling is a company with limited
liability conducting the business of a pile designer and installer.
Its appointment
by Paragon as a subcontractor was not an appointment
of a professional consulting engineer. Oosthuizen testified that he
is only
aware of one piling contractor that truly offers the service
of the design of foundations for buildings. A design office that
will comply with all the relevant codes of practice is needed to
offer such design function. It is also clear from the evidence
of
Crous and Maas that the specialist piling company in which Crous is
involved renders a much broader design service than Gauteng
Piling.
Oosthuizen is of the opinion that in terms of accepted standards
Gauteng Piling is not required to offer such an expansive
service.
[85] Maas testified that Gauteng Piling
is not a geotechnical specialist. It holds itself out as a
specialist contractor and specialises
in piling construction and only
provides a pile to take the load as provided to Gauteng Piling. Its
duty is to ensure that the
piles it installs carry the given loads
safely. The design function undertaken by Gauteng Piling ‘…
can be done
by someone with a matric, it does not have to be an
engineer.’ Gauteng Piling, according to Maas, does ‘…not

do difficult designs’. Maas says that Gauteng Piling is simply
a contractor that designs and installs piles to accommodate
the loads
specified by the structural engineer. Gauteng Piling, according to
Maas, was called upon to design and install the piles
in accordance
with the loads supplied by Boswell. The vertical loads supplied by
Boswell conveyed to Maas that those are the only
loads that Gauteng
Piling needs to allow for in designing the piles. Its design,
accordingly, only catered for the vertical loads
as specified by
Boswell.
[86] Maas testified that it is assumed
that the structural engineer had taken all loads into account in the
rest of his structural
design if they are not specified. Horizontal
loads, according to Maas, can either be transferred into the piles or
into the rest
of the structure through, for example, tie back beams.
Maas testified that if Gauteng piling had been given information of
the
Löffelstein wall, that piles would go through 6 metres of
engineered fill and that the structure does not cater for taking
the
horizontal loads out of the piles he would have recommended to the
structural engineer that a geotechnical expert be employed.

Designing piles to cater for the horizontal and vertical forces is
beyond Gauteng Piling’s scope of capability.
[87] It is common cause that Gauteng
Piling was not privy to the ground beam layout which Boswell
designed. Day is of the opinion
that the mere fact that horizontal
loads have not been specified by Boswell could also be interpreted to
mean that the structural
engineer had taken care of them in some
other way, such as by tying the ground beam above the piles below the
west side of the
house back to the remainder of the structure which
is founded on solid ground. The horizontal loads are then taken back
to the
remainder of the structure instead of taking them down into
the piles. The piling company, in the opinion of Oosthuizen, has no

idea what the structural engineer has designed on top of his pile to
resist the load path of his building. Engineers, according
to
Oosthuizen, have regularly introduced at the top of the pile a strong
structural system that will cater for the balance of the
loads that
the pile is not catering for. The top of the pile is well below the
terrace level. There are pile caps and ground
beams and the piler
has no idea what the structural engineer’s load path detail is.
[88] The narrow pile design function
undertaken by Gauteng Piling, in the opinion of Maas, Day and
Oosthuizen, enjoined it to undertake
an investigation of subsoil
conditions that was limited to confirming its assumptions and
ensuring that the subsoil was capable
of supporting the piles during
the implementation stage. Maas testified that a soil investigation
undertaken by Gauteng Piling
is limited and merely aimed at
establishing the types and consistency of soils, the depth of the
rock and the location of the water-table
to be encountered in the
area where the piles are to be installed. It is undisputed that
certain types of soil and soil conditions
are predictable for certain
areas and that it is acceptable for a piling contractor, such as
Gauteng Piling, to make assumptions
provided the assumptions are
verified at the latest when the piles are installed. Being presented
with an engineered fill, Maas
testified, means that it is well
constructed and generally probably medium dense material. There was
no need for Gauteng Piling
to anticipate movement of the fill and if
the structural engineer was aware of such a possibility Maas would
have expected him
to inform Gauteng Piling thereof.
[89] Butterworth explains that each
hole drilled during installation amounts to a soil investigation the
piling contractor. The
first hole drilled by Gauteng Piling during
installation, according to Butterworth, was a test hole that would
have given it the
exact site parameters. It drilled 37 test holes on
the site prior to concreting. Day is of the opinion that the
geotechnical
aspect of the limited form of pile design that Gauteng
Piling was called upon to undertake entails a consideration of the
sheer
strength of the soil around the side of the pile to determine
whether the pile would be able to transfer the load either into the

soil around the pile or below the base of the pile. Oosthuizen is of
the view that a piling contractor, such as Gauteng Piling,
is not
interested in the ground conditions in terms of the performance of
the piles. It does not inspect a site to determine the
load carrying
capacity of a pile or whether the terrain will accept the pile. It
is the structural engineer who has taken the
ground conditions into
consideration in deciding on piling. The structural engineer has
made the call that his structure will
be stable if a pile of his
specified load is used. The piling contractor, in the opinion of
Oosthuizen, takes the terrain into
consideration in terms of the
founding depth of the piles: what it will cost the piling contractor
to ‘answer the call of
the structural engineer’.
[90] Given the fact that Gauteng Piling
was not called upon to take loads other than the vertical loads
supplied by Boswell into
account in its pile design or to undertake a
geotechnical investigation, its design function, in my view, indeed
became a narrow
one and its soil investigation much more limited than
the detailed investigation required of Boswell. Gauteng Piling’s
scope
of work, accordingly, did not enjoin it to recognize or to
apply its mind to the problems associated with the retaining wall and

fill or the close proximity of the piles below the western end of the
house to the retaining wall. It was in my view perfectly
reasonable
of Gauteng Piling to accept that loads other than vertical loads
would have been taken care of in the structural engineer’s

design of the structure.
[91] The piling subcontract between the
building contractor, Paragon, and its subcontractor, Gauteng Piling
provides that Gauteng
Piling’s tender is based upon the SABS
1200F specification. Clause 5.1.7.1 of the SABS 1200F specification
reads as follows:
‘If it is found during the course
of piling that the subsurface soil conditions differ materially from
those given in the
project specifications as shown on the tender
drawings the contractor shall immediately notify the engineer’.
[92] Glynden contends that the
subsurface soil conditions found during the course of piling differed
materially from those given
in the project specification for the
piling or as shown on the tender drawing, Boswell’s pile layout
drawing. The existence
of the retaining wall and fill and the close
proximity of piles 19, 19A, 20 and 20A to the retaining wall were not
given in the
project specification or tender drawings. Glynden
contends that Gauteng Piling acted negligently in not immediately
notifying
the engineer thereof. There is in my view no merit in this
contention.
[93] Boswell, it is common cause, was
fully aware of the existence of the retaining wall, the fill and the
close proximity of the
critical piles to the retaining wall and that
these parameters were not given in the project specification for the
piling or shown
on the pile layout drawing. As was explained by Day,
clause 5.1.7.1 of SABS 1200F is concerned with the obligation of a
contractor
to notify the engineer if an event arises that could give
rise to a claim by the contractor, in this instance Gauteng Piling.
[94] Maas testified that had Gauteng
Piling encountered huge boulders, very shallow depth, water or a
major collapse while drilling
on site it would have informed the
engineer of that. The conditions on site, however, were no different
from what Gauteng piling
expected to get. I have mentioned
Oosthuizen’s opinion that the unusual and critical terrain
parameters made no difference
to the installation of the piles.
Gauteng Piling, accordingly, had nothing unusual to report. It is
common cause that it is
accepted standard practice that a level
surface would be available to a piling contractor and that is what
was found when Gauteng
Piling arrived on site to install the piles.
Its primary assumption of an average founding depth of 6 to 8 metres
per pile was
proved correct. As Oosthuizen said, it is Gauteng
Piling’s business to install piles right up to and even over
the edge
of a precipice. The existence of the fill in itself, also
in the opinion of Day, is not something untoward from Gauteng
Piling’s
point of view that would have warranted reporting to
the engineer. If a situation had arisen where the piles could not be
installed
through the fill into stable material below or into in situ
material below then the design assumptions would not have been
fulfilled
and reporting of the fill to the engineer may have been
warranted. The retaining wall did not concern Gauteng Piling.
[95] No negligence on the part of
Gauteng has been proved. This finding makes it unnecessary for me to
consider the questions whether
there was a legal duty imposed upon
Gauteng Piling to prevent Glynden (a non-contracting party to the
piling subcontract) from
suffering pure economic loss and whether its
exposure to pay damages could be more onerous than provided for in
the piling subcontract
that brought about its engagement as designer
and installer of the piles.
[96] Turning to the question of the
amount of Glynden’s loss, there has been agreement amongst the
expert witnesses in relation
to the costs of the remedial works,
above and below ground, except for four items concerning the below
ground remedial works.
The agreed costing for the above ground
remedial works is the sum of R507 168.90. Crous and Day, on behalf
of Powell Boswell &
Associates and Gauteng Piling respectively,
disagree with the assessment of Tromp on behalf of Glynden on the
following items in
respect of the below ground remedial works: (a)
allowance for provisional and general costs in respect of the piling
and anchoring;
(b) additional construction work required by Tromp;
(c) additional construction monitoring required by Tromp; and (d) the
rate
of the contingency allowance.
[97] Tromp proposes an amount of R640
000 in respect of the piling and anchoring establishment and
provisional and general costs
and Day an amount of R406 000. Their
proposed amounts include an amount of R140 000 in respect of
establishment costs, which amount
is not in dispute. Crous proposes
that no provision be made for provisional and general costs since
some piling contractors do
not charge such costs. The disagreement
between Tromp and Day relates to the time period that should be
allowed for the execution
of the below ground remedial work below the
west end of the house. I am of the view that provision should be
made for provisional
and general costs. Tromp’s proposal is
based on an actual price received from a piling contractor and the
below ground remedial
works also include the construction of a ground
beam and anchoring. Day’s estimate of four weeks is fully
motivated and
can, on the evidence presented, not be faulted. I am
accordingly of the view that the amount proposed by Day should be
allowed
in respect of this disputed item. I further agree with the
submission of Boswell’s counsel that there is nothing to
suggest
that either the evidence of Day or that of Crous in relation
to the other disputed items is anything other than a fair assessment

of the costs involved.
[98] The amount of R266 000.00 in
respect of the allowance for provisional and general costs should
accordingly be added to the
agreed costing for the below ground
remedial works in the sum of R1 672 437. Agreement in relation to
the costs of the below ground
remedial works, excluding the sum of
R266 000 in respect of the allowance for provisional and general
costs, was reached on 21
May 2014 and in relation to the above ground
remedial works on 27 May 2014. I agree with the submission of
Gauteng Piling in which
Powell Boswell & Associates concur that
interest should run from the respective dates upon which the
agreements were reached
and in respect of the disputed items from the
date of judgment.
[99] Finally, the matter of costs. I
am not persuaded that the circumstances of this case warrant a
deviation from the general
principle that costs should follow the
event, both in respect of Glynden’s claim against Boswell and
its claim against Gauteng
Piling, or that there is any proper case
made out for the granting of a punitive costs order against Powell
Boswell & Associates.
I consider it just to award costs on the
usual party and party scale.
[100] In the result the following order
is made:
1. The plaintiff’s claim against
the third defendant is dismissed with costs, including the costs
relating to the expert witnesses
employed.
2. Judgment is granted against the
first defendant in favour of the plaintiff for:
2.1 Payment of the sum of R2 445
605.90;
2.2 Interest on the amount of R1 672
437 at the rate of 9.00% per annum a tempore morae from 21 May 2014
until date of payment,
on the amount of R507 168.90 at the rate of
9.00% per annum a tempore morae from 27 May 2014 until date of
payment and on the amount
of R266 000 at the rate of 9.00% per annum
a tempore morae from 27 January 2015 until date of payment.
2.3 Costs of suit, including the costs
relating to the expert witnesses employed.
P.A. MEYER
JUDGE OF THE HIGH COURT
27 January 2015
Dates of hearing: 16 May – 6
June and 15 – 16 July 2014
Date of judgment: 27 January 2015
Plaintiff’s counsel: Adv JF
Steyn
Plaintiff’s attorneys: Norton
Rose Fulbright South Africa
First defendant’s counsel: Adv
J Joyner SC
First defendant’s attorneys:
Andrew Miller & Associates
Third defendant’s counsel: Adv
MJ Sawyer
Third defendant’s attorneys:
Webber Wentzel Attorneys