About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 19
|
|
Van Rooyen v Trinamic Consulting Engineers (Pty) Ltd and Others (84775/2014) [2016] ZAGPPHC 19 (25 January 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
25/1/16
CASE N0:84775/2014
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
In the matter between:
VINCENT VAN
ROOYEN
Plaintiff
And
TRINAMIC CONSULTING
ENGINEERS (PTY) LTD 1
ST
Defendant
SOLID BUILDING
CONTRACTING
CC 2
ND
Defendant
DASHDOT
ARCHITECTS
3
RD
Defendant
JUDGMENT
KGANYAGO, AJ:
[1] This is an exception
in terms of s23( 1) of the Uniform Rules of Court, in terms of which
the second defendant complains
that the plaintiff's claim do
not disclose the cause of action. The facts are briefly as follows:-
The plaintiff contracted Riverpray
Lifestyle Estate (Pty) Ltd
("Riverspray") to construct a house for him. Riverspray in
turn subcontracted the three defendants.
The first defendant was
subcontracted as a structural engineer, the second defendant as a
builder, and the third defendant as an
architects for designing the
house. Riverspray has now been liquidated, and is not a party to the
action. The plaintiff alleges
that the house built is so defective,
and structurally unsound, that it will be demolished and rebuilt. The
plaintiff sues the
three defendants jointly and severally, alleging
that each of them was either individually or jointly and materially
responsible
for the alleged defects on the house.
[2] On the 6th February
2015, the second defendant served the plaintiff with a notice in
terms of rule 23(1) of the Uniform Rules
of Court in which it is
claimed that the plaintiff's particulars of claim lacks averments
necessary to sustain a cause of action.
The plaintiff delivered a
notice to oppose the second defendant's exception.
[3] The plaintiff does
not allege that there was any contractual relationship between him
and any of the defendants. He contends,
however, that each of the
defendants, had a legal duty in respect of all of aspects involved in
the construction of the house towards
whomsoever would become the
owner of the house. Accordingly, the plaintiff's claim against the
defendants is a delictual one.
[4] The second defendant
contends that as a subcontractor, it had no direct contract with the
plaintiff. Accordingly, so asserts
the second defendant that the
plaintiff cannot recover damages, for alleged defective work directly
from it. According to the second
defendant, it is only Riverspray
which can exercise its contractual remedies against it.
[5] It is trite that in
order to succeed, an excipient must persuade the court that upon
every interpretation with the pleading
in question and, in particular
the document on which it is based, can reasonable bear, no cause of
action is disclosed, failing
this, the exception ought not be upheld.
(See Sun Packing (Pty) Ltd v Vreulink
[1996] ZASCA 73
;
1996 (4) SA 176
(A) at 183 E
and Living Hands (Pty) Ltd No and Another v Ditz and Others
2013 (2)
SA 368
(GSJ).
[6] In Lillicrap,
Wassenaar & Partners v Pilkington Brothers
1985 (1) SA 475(A)
the
court was faced with a similar situation. The court held that the
fundamental question is whether the respondent has alleged
sufficient
facts to constitute a cause of action for damages in delict. The
court held further that in order to succeed on a claim
for pecuniary
loss the plaintiff must allege and prove that the defendant has been
guilty of conduct which is both wrongful and
culpable, and which
caused a patrimonial damage to the plaintiff. The court also held
that our law adopts a conservative approach
to the extension of
remedies under the lex Acqulia. The court held that it did not
consider that policy considerations, require
that delictual liability
be imposed for negligent breach of a contract of
professional employment like
in that case, and that it is undesirable
to extend the Aquilian action to the duties subsisting between the
parties to a contract
of a professional service. The relationship of
the three parties is still one which has its origin in a contract and
their wishes
must be respected. (See also Country Cloud Trading v
MFC, Department of Infrastructure Development
2015 (1) SA 1
(CC).
[7] In his argument
counsel for the second defendant submitted that the recognition of
dilictual liability by the second defendant
to the plaintiff is not
called for in the present case. To do so, argued cousel, would amount
to the imposition of
dilictual warranties on remote
parties under circumstances where there is a contractual chain in
existence designed by the parties
to regulate their rights and
obligations in the context of a contractual chain in existence
designed by the parties to regulate
their rights and obligations in
the context of a contruction project.
[8] Counsel for the
plaintiff conceding that there was never a contract between the
plaintiff and second defendant,
and that the
plaintiff's claim is a delictual one, nevertheless argued that
the contention by the second defendant
that the existence of a
"contractual matrix" prevents or disallows a delictual
claim is not in accordance with the prevailing
law.
[9] According to the
plaintiff, the second defendant is sued as a joint wrongdoer with two
other defendants who have not taken any
exception to the particulars
of claim. Therefore, the contention is that for the mere fact
of the second defendant being
held jointly and severally, the second
defendant should remain as a defendant.
[10] The plaintiff
further contends that there will be dire consequences should
the second defendant be released from the
present proceedings on the
basis that no such claim is recognizable in our law and that other
defendants will merely blame the
second defendant for failing to have
executed their plans and/or designs and/or instructions as a
result of which the house
was structurally unsound. According to the
plaintiff, in their particulars of claim, they are contending that
the second defendant
has failed to comply with designs and has
constructed the house incorrectly.
[11] It is common cause
that the plaintiff's claim is based on pure economic loss. The
principle developed in the Lillicrap's case
was restated by the
Constitutional Court in Country Cloud Trading
supra
when it
held that our law is generally reluctant to recognize pure economic
loss claims, especially where it would constitute an
extension of the
law of delict.
[12] The plaintiff had a
contractual relationship with Riverspray. The mere fact that
Riverspray has been liquidated, does not automatically
absolve it
from its liabilities. In my view, the plaintiff's case is not
distinguishable from the Lilliscrap's case. It is common
cause that
the plaintiff's claim is based on pure economic loss, and there was
no countractual relationship between him and the
second defendant.
[13] Cousel for the
plaintiff in his heard of arguments has argued that the plaintiff
falls within a foreseeable class of victims.
According to the counsel
for the plaintiff, the
bonis mores
of the community will
always regard the conduct of a builder who fails to build according
to design and instructions of a professional
team as a wrongful
conduct which should lead to liability where damages should flow
from.
[14] Now I have to
determine whether I should extend the Aquilian remedy in
the present situation. It determining whether
to extend liability in
the present case it necessary to determine whether there is a need
for that. In Lillicrap's case it was
held that the court should be
loath to extend the law of delict in a situation like the present
case and thereby eliminate provisions
which the parties considered
necessary or desirable for their own protection.
[15] It is common cause
that the second defendant had neither direct dealings,
nor any contractual relationship
with the plaintiff, but was
contracted to Riverspray. The contract between the plaintiff and
Riverspray has defined the nature
of their relationship and what
performance was required from each party. Therefore, in my view, I do
not consider that policy considerations,
require that delictual
liability be extended in the present situation.
[16] In the result I make
the following order.
16.1.
The second defendant's exception is upheld.
16.2.
The claim against the second defendant is struck
out.
16.3.
Plaintiff to pay defendant's costs including the
costs of employment of the senior counsel.
Date of hearing: 03
November 2015
Judgment delivered:
Appearences:
For the Plaintiff: Adv TA
LL Potgieter SC
Pieter Moolman Attorneys
C/O
Gouzy
Hertzog & Horak, Pretoria.
For the second defendant:
Adv L J van der Linde SC
Instructed by: Tim du
Tait Co Inc, Pretoria