Pienaar and others v Brown and Others (48/2009) [2009] ZASCA 165; [2010] 2 All SA 495 (SCA) ; 2010 (6) SA 365 (SCA) (1 December 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2009
>>
[2009] ZASCA 165
|

|

Pienaar and others v Brown and Others (48/2009) [2009] ZASCA 165; [2010] 2 All SA 495 (SCA) ; 2010 (6) SA 365 (SCA) (1 December 2009)

Links to summary

THE
SUPREME COURT
OF
APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case
No: 48/2009
PIETER
ANDRIES PIENAAR 1
st
Appellant
MELVIN
DOUGLAS CLASSEN 2
nd
Appellant
CLASSENS HOME
IMPROVEMENTS CC 3
rd
Appellant
and
RUSSELL JAMES
BROWN 1
st
Respondent
JOHN SLOEP
2
nd
Respondent
DON NOEL
DANIEL LAMBERTS 3
rd
Respondent
VEN PROJECTS
CC 4
th
Respondent
Neutral
citation:
Pienaar
v Brown
(48/2009)[2009] ZASCA 165 (1 December 2009)
Coram:
Mthiyane,
Nugent, Maya JJA, Tshiqi and Wallis AJJA
Heard:
9
November 2009
Delivered:
1
December 2009
Summary:
Claim
for damages against property owner, building contractor and his
sub-contractor ─ based on negligence ─ principles applied
─
whether failure to comply with statutory obligation under s 4(1) read
with s 7 of National Building Regulations and Building
Standards Act
103 of 1977 is evidence of negligence.
___________________________________________________________
ORDER
On appeal
from:
Cape
of Good Hope Provincial Division (Ndita J sitting as court of first
instance).
1. The appeals
are allowed.
2. The first and
second respondents are ordered to pay the appellants’ costs.
3. The order of
the court below is set aside and replaced with the following:
‘
1. The first
and second plaintiffs’ claims against the first, second and third
defendants are dismissed.
The first and
second plaintiffs are ordered to pay the costs of the first, second
and third defendants, jointly and severally
the one paying the other
to be absolved.
The fourth and
fifth defendants are found to be liable jointly and severally the
one paying the other to be absolved, for whatever
damages the first
and second plaintiffs might prove for injuries sustained by them as
a result of the collapse of the balcony
on 25 April 2004.
The fourth and
fifth defendants are ordered to pay the plaintiffs’ costs of suit,
jointly and severally the one paying the other
to be absolved,
including the qualifying expenses of the plaintiffs’ expert
witness, Mr U Rivera and the costs of the application
for absolution
from the instance.’
___________________________________________________________
JUDGMENT
MTHIYANE JA
(Maya JA, Tshiqi and Wallis AJJA concurring):
[1] On 25 April
2004 the first and second respondents, Mr Russell James Brown and Mr
Joseph Sloep (the plaintiffs) were injured
when a balcony on which
they were standing at the house of the first appellant, Mr Pieter
Andries Pienaar, in Green Point, Cape
Town collapsed. The plaintiffs
were guests at the house of the first appellant, Mr Pieter Andries
Pienaar, in Green Point, Cape
Town, at a function to celebrate the
birthday of Pienaar’s life partner, Mr de Bruin. During the course
of the afternoon a car
alarm went off and a number of guests
including the plaintiffs and De Bruin went out onto the balcony to
see what was happening.
As they did so the balcony collapsed outwards
as the screws fixing it to the wall at the upper level pulled out of
the wall and
it ‘folded’ downwards until its outer edge was
resting on the tiling below. The guests on the balcony fell forward
and the
plaintiffs were fairly seriously injured as a result.
[2] The
plaintiffs instituted action for damages in the Cape High Court
citing as defendants Pienaar, as the owner of the property
at which
the balcony collapsed; the second appellant, Mr Melvin Douglas
Classen who had been employed as the main contractor and
the third
appellant, a close corporation through which Classen conducted his
business; the third respondent, Mr Don Noel Daniel
Lamberts, who
designed, manufactured and installed the balcony, and his corporate
entity, Ven Projects CC, the fourth respondent
who designed,
manufactured and installed the balcony. The third respondent, Mr Don
Noel Daniel Lamberts, was the individual who
physically performed the
work. The claim was based on their alleged negligence in the design,
construction and installation of
the balcony. For the sake of
convenience the first, second and third appellants will be referred
to by their respective names and,
depending on the context,
collectively as ‘the defendants’. References to Classen and
Lamberts refer also to their respective
close corporations.
[3] On 23
November 2002 Pienaar, the owner of the property had approached
Classen, the builder, to provide a quote for amongst other
things,
the balcony in question. On about 27 November 2002 Classen’s
corporate entity, Cape Home Improvements CC (as the third
appellant
was then known), had provided separate quotes to Pienaar in respect
of various parts of the work proposed, which included
a quote for the
construction and installation of a steel-framed balcony.
[4] It is common
cause that Classen said to Pienaar that he did not possess any
expertise or ability to design, construct and install
a steel balcony
as requested, and that an individual who possessed the necessary
expertise should be requested to carry out part
of the work.
Classen’s part of the work on the balcony was limited to the laying
of the meranti floor on the steel work after
it had been manufactured
and installed. Classen accordingly contacted Lamberts and requested
him to provide a quote for the proposed
work.
[5] Lamberts,
after taking the necessary measurements, provided a quote for the
balcony (R6500) to Classen and a general quote was
supplied by
Classen to Pienaar which included the work he (Classen) was to
perform (R10944), namely the laying of meranti timber
flooring after
the balcony had been manufactured and installed.
[6] Lamberts
then designed, constructed and installed the balcony off Pienaar’s
main lounge on the top floor. It was a half-moon
shaped steel framed
structure, approximately 3 metres long and over 1.5 metres wide at
its apex. It was largely a cantilevered
construction, meaning that it
was fastened to the wall of the house without material support from
below. Holes were drilled in
the wall surrounding the door reveal at
parts where the base of the balcony and the top frame abutted the
wall, and the holes were
plugged with plastic plugs. The balcony was
then attached to the wall by means of coach screws 110 mm long.
Allowing for the thickness
of the steel being 38 mm these penetrated
the wall to a depth of some 70 mm. Apart from the screws a brace,
referred to as a knee
brace, was attached underneath the balcony,
near the apex of the half-moon and ran at an acute angle to a point
on the wall no
more that 1 metre below the level of the balcony. In
the original design Lamberts had intended that the balcony would be
supported
on its outer edge by two steel posts or pillars but when
the time came for these to be installed Pienaar objected to them and
they
were not installed and instead they were adapted to form the
knee brace.
[7] No plans or
approvals were sought from or granted by the local authority as
required by s 4(1) of the National Building Regulations
and Building
Standards Act 103 of 1977. The sub-section provides that no person
shall without the prior approval in writing of
the local authority
erect any building in respect of which plans and specifications are
to be drawn and submitted in terms of the
Act. The approval by a
local authority is provided for in s 7 of the Act. It is not disputed
that the defendants were in breach
of this statutory provision.
[8] At trial the
case proceeded on the question of liability only. The court
determined that for purposes of liability three issues
fell to be
determined. The first was the question of negligence in respect of
Pienaar, Classen and Lamberts and their corporate
entities, and
quantum stood over for later determination. The remaining two issues
turned on whether Lamberts was a sub-contractor
or an independent
contractor, and whether he had been employed by Pienaar. It is now
conceded that he was Classen’s sub-contractor
and the latter issues
have, accordingly fallen away leaving only the question of negligence
to be determined. At the conclusion
of the trial the court found all
the defendants to have been negligent and thus liable to the
plaintiffs jointly and severally,
the one paying the others to be
absolved. Pienaar and Classen were granted leave to appeal to this
court. Lamberts and his corporate
entity have not appealed the
decision.
[9] Pienaar’s
negligence was found to have arisen firstly from his failure to
comply with the statutory requirements [s 4(1) read
with s 7 of the
National Building Standards Act]. Secondly, it was held that he had
‘caused the balcony to be constructed without
regard to its
structural integrity, by insisting that vertical support posts should
not be used’ when having regard to the fourth
defendant’s
[Lamberts’] evidence.
[10] Classen was
found to have been negligent on several grounds. The court held that:
* he
should have known that council approval was necessary before a
structure such as a balcony could be installed;
* he
had a duty ‘to investigate and advise’ Pienaar;
* he
should have foreseen the risk of danger in consequence of the work he
employed the contractor [Lamberts] to perform without
council
approval;
* he
was in a position to take steps to guard against the danger and he
did not take the steps in question;
* he
ought to have appointed an engineer or a structural technician;
* he
agreed ‘to change the design of the balcony and installation
without virtual supports;
* he
is liable [therefore] for the negligent conduct of his sub-contractor
(Lamberts).
[11] In
Langley
Fox Building Partnership (Pty) Ltd v De Valence
,
1
a case in which an independent contractor was employed to perform the
work, the test for liability of the employer of the independent

contractor as it applies to cases such as the present matter, was
enunciated by Goldstone AJA as follows:
‘
[T]here
are three broad questions which must be asked, viz:
(1) would
a reasonable man have foreseen the risk of danger in consequence of
the work he employed the contractor to perform? If
so,
(2) would
a reasonable man have taken steps to guard against the danger? If so,
(3) were
such steps duly taken in the case in question? (
See
also
Chartaprops
16 (Pty) Ltd v Silberman
.
2
)
This emphasises the point that the liability in these cases is
personal not vicarious, and that it is not a question of the
liability
of the employer being passed to the independent contractor
and thence to any sub-contractor, but a question of the respective
individual
liability of each of them. As Goldstone AJA pointed out
that where the answer to the first two questions is in the
affirmative
does a ‘legal duty arise, the failure to comply with
which can form the basis of liability.’
[12] It bears
mention that in order to satisfy requirement (3) a party is required
to take no more than reasonable steps to guard
against harm to the
public. Whether or not such threshold has been achieved depends upon
a consideration of all the facts and circumstances
of the case. The
fact that the harm which was foreseeable did eventually occur would
not mean that the steps taken were necessarily
unreasonable.
Ultimately the enquiry involves a value judgment (See
Chartaprops
at para 48;
Pretoria
City Council v De Jager
.)
3
[13] Turning to
the facts of this case, it is convenient to consider the question of
Pienaar and Classen’s possible negligence
vis-à-vis the
plaintiffs separately. As to Pienaar the court below found him to be
negligent on two grounds. First, he was
said to be negligent in
failing to comply with the statutory requirements to submit plans in
respect of the balcony, in circumstances
where a reasonable person in
his position would have made enquiries before commencing with the
installation of the balcony. Secondly,
it was found that he had
caused the balcony to be constructed without regard to its structural
integrity, by insisting that vertical
supports not be used in its
construction. In argument it was sought to contend that he had also
failed to take adequate steps to
ensure that a competent contractor
was employed, but this case was not pleaded and it is not supported
by the evidence. It can
therefore be disregarded.
[14] There can
be no question that as a general proposition any person (Pienaar
included) who causes a two metre high balcony to
be erected at his
home would foresee the risk of harm to a person stepping onto it if
it was not properly secured. As such he would
have been expected to
take reasonable steps to avoid harm to such a person who might be
injured in the event of the structure collapsing.
The real question
before us is what steps should have been taken and whether Pienaar
took those steps to avoid the risk of harm
to the plaintiffs in terms
of requirement (3) of the
Langley
Fox
test as set out in paragraph 11 above.
[15] As already
indicated Pienaar did not submit any plans for the balcony in
question as he had done previously when he did alterations
and
additions to his house in 2002. He did not make enquires from his
builder, Classen, as to whether plans were required for undertaking

this type of work. Consequently the question that arises is whether
this failure rendered Pienaar liable in damages arising from
the
collapse of the balcony. In the way the case has been pleaded it does
not appear that the plaintiffs are relying on the breach
per se as
creating liability or providing them with a right to claim damages.
How one goes about determining whether the statute
provides for such
a right of action was alluded to by Cameron JA in
Olitzki
Property Holdings v State Tender Board
2001 (3) SA 1247
(SCA) at para 12 where he said:
‘
Where
the legal duty the plaintiff invokes derives from breach of a
statutory provision, the jurisprudence of this Court has developed
a
supple test. The focal question remains one of statutory
interpretation, since the statute may on a proper construction by
implication
itself confer a right of action, or alternatively provide
the basis for inferring that a legal duty exists at common law. The
process
in either case requires a consideration of the statute as a
whole, its objects and provisions, the circumstances in which it was

enacted, and the kind of mischief it was designed to prevent.’
[16] On a proper
reading of the Act there is nothing to suggest that a failure to
comply with its requirement would necessarily
lead to liability. On
the facts of this case what makes it particularly problematic is that
on the available expert evidence it
is not the failure to submit
plans that caused the balcony to collapse, but the manner in which it
was fixed to the wall. It is
unnecessary to consider whether in other
circumstances a failure to submit plans for approval may ground a
claim for damages. In
this case it cannot do so because there is no
causal link between that failure and the collapse of the balcony.
[17] As to the
second ground of negligence advanced against Pienaar and accepted by
the court below, namely, that he caused the
balcony to be constructed
without regard to its structural integrity, by insisting that the
vertical supports not be used in its
construction, here again the
point breaks down in the light of the evidence presented in court.
There was no evidence that the
vertical posts would have prevented
the balcony from collapsing when it pulled out of the wall from its
fixings. All that Rivera
was prepared to say in that regard was that
the posts ‘would have reduced the tension force on the fixings
which, in the end
were the cause of failure.’ Even if it is assumed
however that pillars would have helped there is no evidence that
Pienaar had
reason to think that their exclusion could be a source of
danger. Cantilevered balconies are a sufficiently common feature of
houses
for a lay-person like Pienaar to believe ─ and correctly so
─ that a suitably qualified person will erect it safely.
[18] It seems to
me that Pienaar took all reasonable steps to ensure that a proper
balcony was designed, erected and installed.
He contracted Classen, a
builder of some 20 years standing, whom he (and his life partner De
Bruin) believed had the necessary
ability, integrity and expertise to
undertake the work. Classen came with the necessary credentials, as
being on the Absa Panel
of Contractors, a group of contractors
shortlisted by a major bank to do alterations and additions for their
clients. Pienaar had
no reason to think that Classen or his
corporate entity would not perform the work in a professional or
workmanlike manner or
would fail to appoint a similarly qualified
person as a sub-contractor.
[19] Pienaar
could not do the work himself as he had no expertise to do so. It
cannot be said that he acted unreasonably. I consider
him to have
complied with the third leg of the
Langley
Fox
test and he is accordingly not liable to the plaintiffs for the
damages claimed.
[20] Turning to
Classen, it must be borne in mind that from the outset he disavowed
any skill or expertise in the design, manufacture
or installation of
a steel balcony. His mandate was limited to finding a contractor who
had the necessary expertise in that field.
And so no mandate was
given to Classen to manufacture or erect the steel balcony. The
person who was to perform the work, Lamberts,
was introduced to
Pienaar and De Bruin and on occasion they interacted with him
directly. Having regard to the evidence as a whole
it is clear that
the balcony collapsed as a result of the negligent manner in which
Lamberts fixed it to the wall. At the last
minute he used coach
screws instead of the intended rawl bolts and positioned them
incorrectly.
[21] The first
question is whether Classen can be held vicariously liable for the
negligence of Lamberts. The answer is no. As pointed
out in
Langley
Fox
,
the general rule of our law is that an employer is not responsible
for the negligence or the wrongdoing of an independent contractor

employed by him. (See
Langley
Fox
at
8A-B.) I consider that on the facts of this case Classen falls in the
category of the aforesaid employer and was not responsible
for the
negligence of Lamberts.
[22] This second
question is whether any personal fault can be attributed to Classen.
The absence of vicarious liability does not
mean that there cannot be
situations in which an employer, or principle contractor, may be
liable because of their own negligence.
In the present matter Classen
would not escape liability if there was evidence implicating him in
negligence. In the present matter
there is no such evidence.
[23] It is true
that he too is implicated in the failure to submit plans and is
perhaps more culpable than Pienaar. But for the
reasons given in
relation to Pienaar this is not causally linked to the collapse of
the balcony and is therefore irrelevant.
[24] There was
some suggestion that when he arrived at the scene during the
installation of the balcony he too asked Lamberts to
remove the
vertical support posts by saying he should do what the client wishes.
As already indicated the vertical posts were not
shown or alleged to
be a factor in the collapse of the balcony. I have already alluded to
the fact that Rivera was not even asked
any questions about it. Of
greater importance is that Classen had no reason to believe that
Lamberts had fixed the balcony to the
wall in an inadequate fashion.
[25] Classen had
no means to prevent the collapse of the balcony. His evidence was
that when he arrived at the scene the balcony
was already installed.
There is evidence that the head of the coach screws used to fix it in
place were the same in appearance
as those of rawl bolts. That being
so, he had no means of telling that inadequate fastenings were used.
Nor had he any knowledge
that they were wrongly positioned because
they had been inserted into plaster instead of brick. In my view no
negligence was proved
against Classen and he should not have been
found liable.
[26] In the
result the following orders are made:
1. The appeals
are allowed.
2. The first and
second respondents are ordered to pay the appellants’ costs.
3. The order of
the court below is set aside and replaced with the following:
‘
1. The first
and second plaintiffs’ claims against the first, second and third
defendants are dismissed.
The first and
second plaintiffs are ordered to pay the costs of the first, second
and third defendants, jointly and severally
the one paying the other
to be absolved.
The fourth and
fifth defendants are found to be liable jointly and severally the
one paying the other to be absolved for whatever
damages the first
and second plaintiffs might prove for injuries sustained by them as
a result of the collapse of the balcony
on 25 April 2004.
The fourth and
fifth defendants are ordered to pay the plaintiffs’ costs of suit,
jointly and severally the one paying the other
to be absolved,
including the qualifying expenses of the plaintiffs expert witness
Mr U Rivera and the costs of the application
for absolution from the
instance.’
____________________________
KK
MTHIYANE
JUDGE OF
APPEAL
NUGENT JA
(concurring)
[27] Cases like
this one bring to mind the game known as ‘pass the parcel’. They
arise when the responsibility for performing
a task is passed from
hand to hand until ultimately it reaches the person or persons who
actually do the work, whether as employees
or as independent
contractors. The question that can arise in such cases is who (if
anyone) bears liability (I am referring to
direct liability and not
liability that might arise vicariously) if the performance (or
failure to perform) the task causes foreseeable
harm to a third
party? Unless one is to say that liability always falls only upon the
person or persons at the end of the line
who actually did the work it
follows that somewhere along the line there might be a party whose
legal responsibility is not discharged
by assigning the work to
someone else but only by ensuring that the work is properly done.
That is not a matter of jurisprudence
but a matter of logic.
[28] That
occurred in
Chartaprops
16 (Pty) Ltd v Silberman
.
4
The task of maintaining the cleanliness of the floors of a shopping
mall was assigned by the owner to a cleaning contractor who
in turn
assigned it to employees who did the cleaning. The effect of the
decision in that case was that responsibility for the
consequences of
failing to maintain the cleanliness of the floors passed from the
owner to the contractor but there it stopped.
(Whether or not the
cleaners were also vulnerable to liability on one basis or another
was not considered). Notwithstanding that
an ordinarily adequate
system had been put in place the system was not adhered to by one or
other of the cleaners and on that basis
the trial court found (this
court confined itself to endorsing that finding
5
)
that because the employees ‘failed to take reasonable steps to
detect and remove [the hazard]’ the system was ‘not sufficiently

adequate to detect and remove spillages with reasonable promptitude’.
Although not expressed in terms I think it is evident that
the court
considered that a reasonable contractor was required not merely to
put in place an adequate system but also to ensure
that the work was
indeed done.
[29] This case
once again involves three parties. The owner (Mr Pienaar) assigned
work to a contractor (Mr Classen) who assigned
it to a sub-contractor
(Mr Lamberts). All three knew (or at least ought to have known) that
harm could be caused to third parties
if the work was not properly
done. The question before us is whether they (or either of them) are
liable for such harm when it
occurred.
[30] The legal
test to be applied when answering that question, as pointed out by my
colleague, is that set out in
Langley
Fox
(which repeats in substance the traditional test for negligence
articulated in
Kruger
v Coetzee
6
)
and for present purposes we need concern ourselves only with the
third leg of that test.
[31] I agree
with my colleague that no more could reasonably be expected of Mr
Pienaar, who had no expertise in the field, than
to pass the work on
to an experienced building contractor
,
in the expectation that he would pass it on to a person whom he
considered to be an expert. As for Mr Classen it was argued on
behalf
of the respondents – much along the lines of the finding in
relation to the contractor in
Chartaprops
– that his responsibility did not stop with passing the work on to
Mr Lamberts but he was called upon also to ensure that it
was
properly done. Mr Classen also had no expertise in this particular
field and once more I do not think that could reasonably
be expected
of a building contractor in that position.
[32] Thus I
agree with my colleague that neither Mr Pienaar nor Mr Classen were
shown to have been negligent and I concur in the
order he proposes.
______________________
RW
NUGENT
JUDGE
OF APPEAL
Appearances:
For 1
st
Appellant: AG Sawma
Instructed
by:
Shakenovksy-Nysschen
c/o Fairbridges Attorneys Cape Town
Lovius
Block Attorneys Bloemfontein
For 2
nd
& 3
rd
Appellants: JC Butler SC
Instructed by:
Everinghams
Attorneys Cape Town
Webbers
Attorneys Bloemfontein
For 1
st
& 2
nd
Respondents: PA Corbett
Instructed
by:
Malcolm
Lyons & Brivik Inc Cape Town
Matsepes
Inc Bloemfontein
1
1991
(1) SA 1
(A) at 12H-J.
2
[2008] ZASCA 115
;
2009
(1) SA 265
(SCA) at para 42,
[2008] ZASCA 115.
3
1997
(2) SA 46
(A) at 55H-I.
4
[2008] ZASCA 115
;
2009 (1) SA 265
(SCA).
5
Para 4.
6
1996 (2) SA 428
(A) at 430E-H.