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 127
|
|
Hillary Construction (Pty) Ltd v Telkom South Africa SOC Ltd (29896/2014) [2016] ZAGPPHC 127 (24 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 29896/2014
24/3/2016
Not
reportable
Not
of interest to other judges
Revised
In
the matter between:
HILLARY
CONSTRUCTION (PTY)
LTD PLAINTIFF
And
TELKOM
SOUTH AFRICA SOC
LTD DEFENDANT
JUDGMENT
Fabricius
J,
1.
At
the hearing of this action the question of quantum and merits was
separated in terms of the provisions of Rule 33 (4) of the
Rules of
Court. It was also agreed that an exception would be argued in terms
of which Defendant contended that Plaintiff’s
Particulars of
Claim do not disclose a cause of action, inasmuch as Defendant’s
act or omission in a delictual action, was
not wrongful. Formulated
more precisely, the objection was that Plaintiff’s Particulars
of Claim contained insufficient allegations
to found such a claim in
delict, based on pure economic loss.
2.
Plaintiff’s
Particulars of Claim:
It was alleged that
during 2010 the South African National Roads Agency (“SANRAL”)
and Plaintiff, in terms of a revised
tender, entered into a written
agreement on 31 January 2011. It was pleaded that the contract
comprised certain volumes of documents
which were briefly described.
It was also pleaded that for purposes of the action the material
terms of the contract were the following:
2.1
The commencement date in
respect of the works would be 14 March 2011;
2.2
The contract period would
be 27 months;
2.3
The anticipated
completion date in respect of the works would be 14 June 2013;
2.4
The contract sum was
agreed upon.
The
particular road which had to be reconstructed by Plaintiff in terms
of this agreement was a national road as defined in the
South
African National Road Agency Ltd
and National Roads Act
7 of 1998 (“the SANRAL Act”).
Plaintiff further
pleaded that during the period 2007 to 2008, Defendant laid an optic
fibre cable below the surface of the road.
This optic fibre cable was
a structure or thing as envisaged by the provisions of s. 48 (1) of
the said
SANRAL Act.
It was alleged that Defendant laid
this optic fibre cable without the written permission of SANRAL,
alternatively, contrary to written
permission given by SANRAL in
contravention of the provisions of s. 48 (1) of the said
Act
.
It was then alleged that on 15 May 2011, Plaintiff, in his execution
of the relevant works, discovered that the optic fibre cable
had been
laid in a certain manner by Defendant which caused an obstruction,
and prevented the Plaintiff from constructing the layer
works in
execution of the construction required.
3.
In
par. 17 of the Particulars of Claim it was stated “the
Plaintiff, upon discovery of the obstruction, notified the Defendant
thereof in writing, on 19 May 2011”. Nothing further was
pleaded about this notification, and its terms for present purposes
do not form part of the Particulars of Claim.
4.
In
par. 18 of the Particulars of Claim the following was stated: “On
20 May 2011, the Plaintiff, in writing, demanded from
the Defendant
to remove the obstruction by relocating the optic fibre cable to the
standard position, alternatively to its correct
position outside the
road prism”. No details of this of this demand were given, and
its terms are for present purposes not
known, and do not form part of
the Particulars of Claim. For instance, one would not know on which
terms Defendant was placed in
this context, and whether any
consequences were put to Defendant should it fail to heed the demand
either within a certain period
or at all.
5.
Plaintiff
continued to plead that Defendant removed this obstruction on 24 June
2012. This particular date was inserted at the hearing
of the
exception by way of an amendment, the request for such not having
been opposed by Defendant’s Counsel. It will be
noted that the
removal of this obstruction occurred about 13 months after the demand
made, and at least some three years after
the fibre optic cable had
been laid.
6.
Plaintiff
then continued to allege that as a result of the obstruction and the
removal of the obstruction, it was unable to execute
the works in the
relevant area from 15 May 2012 to 24 June 2012. This period was
referred to as “the delay” period.
It will be noted that
this “delay” occurred for this period almost one year
after the demand made by Plaintiff to remove
the obstruction.
Plaintiff then alleged that the delay was caused by the Defendant
creating the obstruction, and not removing it
when it should have, or
in the alternative, delaying the removal of the obstruction. It was
not pleaded when Defendant ought to
have removed the obstruction, or
as an alternative, how long it delayed in removing this particular
obstruction.
7.
Having regard to the
terms of the exception and the nature of Plaintiff’s claim, I
deem it convenient to quote the following
conclusions or contentions
pleaded by Plaintiff: “23: In causing the delay, the Defendant,
through its employees acting within
the course and scope of their
employment with the Defendant, acted negligently in the following
respects:
23.1
It failed to exercise reasonable care to
ensure that the fibre optic cable was located correctly;
23.2
It failed to exercise reasonable care of
failing to remove the obstruction timeously, expeditiously and
diligently when it should
have”.
It was not pleaded when
the obstruction ought to have been removed timeously, but from the
previous allegations made by Plaintiff
one knows that it was removed
13 months after the demand referred to by Plaintiff.
Paragraph 24 reads as
follows: “Defendant, as owner of the optic fibre cable,
alternatively as the custodian of the optic
fibre cable, further
alternatively as the person responsible for the optic fibre cable,
pursuant to the notification and the demand referred to in
paragraphs 17 and 18 above
(I underline) owed to the Plaintiff a
duty to act carefully and not to cause damages to the Plaintiff (“the
duty of care”)”.
It
will be noted that Plaintiff’s allegations in this context are
very specific: the so-called “duty of care”
plainly and
simply arose as the result of the notification and the demand that I
have referred to hereinabove, and which was set
out in paragraphs 17
and 18 of the Particulars of Claim.
8.
In
paragraph 25 of the Particulars of Claim the following allegation is
then made: “The Defendant wrongfully breached the
duty of care
by acting negligently as set out in paragraph 23 above, thereby
causing damages to the Plaintiff in the form of pure
economic loss:
(“the damages”)”.
9.
For purposes of an
exception one must assume that the facts pleaded and giving rise to
the exception are correct. A particular pleading
must also be read as
a whole in this context. The annexure of Defendant’s objection
is plainly and simply that as a matter
of law the Plaintiff is not
entitled to the relief claimed by it. Negligent causation of pure
economic loss is not
prima facie
wrongful in the delictual
sense, and does not give rise to liability for damages, unless policy
considerations require that the
Plaintiff should be recompensed by
the Defendant for the loss suffered. A number of decisions of the
Supreme Court of Appeal deal
with this particular topic, as do a
number of the Constitutional Court.
See:
Fourway
Haulage SA (Pty) Ltd v SA National Roads Agency Ltd
[2008] ZASCA 134
;
2009 (2) SA 150
SCA, Telematrix (Pty) Ltd v Advertising Standards Authority
2006 (1)
SA 461
SCA, Le Roux and Others v Dey
2011 (3) SA 274
(CC) and Country
Cloud Trading CC v MEC, Department of Infrastructure Development
2015
(1) SA 1
CC
.
Defendant’s Counsel
submitted that the facts pleaded by the Plaintiff did not give rise
to a legal duty on the Defendant to
act carefully and not to cause
damages to the Plaintiff. They therefore lacked averments necessary
to sustain a cause of action,
and it has been generally accepted that
the issue of wrongfulness could be decided on exception.
See:
Indac
Electronics (Pty) Ltd v Volkskas Bank Ltd
[1991] ZASCA 190
;
1992 (1) SA 783
(A)
.
It will be convenient to
refer to the
Country Cloud
decision
supra
in the
context of Defendant’s argument that the facts pleaded by the
Plaintiff do not give rise to a legal duty on the Defendant
to act
carefully, and not to cause damages to the Plaintiff: the general
principle is that if conduct is not wrongful, a defendant
or
potential defendant should not be subjected to a claim for damages
notwithstanding that it may have acted negligently. At paragraph
22,
Khampepe J put it as follows: “Wrongfulness is generally
uncontentious in cases of positive conduct that harms the person
or
property of another. Conduct of this kind is
prima facie
wrongful. However, cases of pure economic loss – that is to
say, where financial loss is sustained by a plaintiff with no
accompanying physical harm to her person or property – the
criterion of wrongfulness assumes special importance. In contrast
to
cases of physical harm, conduct causing pure economic loss is not
prima facie
wrongful. Our law of delict protects rights and,
in cases of non-physical invasion, the infringement of rights may not
be as clearly
apparent as in direct physical infringement. There is
no general right not to be caused pure economic loss”. It is
also clear
from this judgment that wrongfulness must be positively
established and in addition such a claim has been recognised in our
law
only in a limited category of cases. If such claims are too
freely recognised there could be a risk of liability in an
indeterminate
amount for an indeterminate time to an indeterminate
class. The question at the end of the day is the following: would it
be reasonable
to impose liability under the circumstances, and by
“circumstances” in this context I refer to those
allegations set
out in the Particulars of Claim.
In the
Le Roux
decision
supra
the following was said at paragraph 122: “In
the more recent past our Courts have come to recognise … that
in the
context of the law of delict:
a)
the criterion for wrongfulness ultimately
depends on a judicial determination of whether – assuming all
the other elements
of delictual liability to be present – it
would be reasonable to impose liability on a defendant for the
damages flowing
from a specific conduct; and
b)
that the judicial determination of that
reasonableness would in turn depend on considerations of public and
legal policy in accordance
with constitutional norms. Incidentally,
to avoid confusion it should be borne in mind that, what is meant by
reasonableness in
the context of wrongfulness has nothing to do with
reasonableness of the Defendant’s conduct [which is part of the
element
of negligence], but it concerns the reasonableness of
imposing liability upon the defendant for the harm resulting from
that conduct”.
This
whole topic was also covered in great detail by the judgment of Brand
JA in
Trustees, Two Oceans Aquarium Trust v Kantey and Templer
(Pty) Ltd
2006 (3) SA 138
(SCA) at paragraphs 10 to 13
.
10.
Facts as pleaded:
10.1
According to the
Particulars of Claim the Plaintiff entered into a contract with
SANRAL on 31 January 2011.
10.2
It did so in accordance
with general applicable conditions of contract;
10.3
The commencement date in
respect of the works would 14 March 2011 and the anticipated
completion date would be 14 June 2013;
10.4
The Defendant laid the
relevant optic fibre cable during the period 2007 to 2008;
10.5
Defendant
was informed of the obstruction on 19 May 2011 and requested to
remove it on 20 May 2011;
10.6
Defendant removed the
obstruction on 24 June 2012;
10.7
Plaintiff
was unable to execute its works in the relevant area from 15 May 2012
to 24 June 2012 which caused the relevant delay
relied upon.
11.
What was not pleaded is
the following:
11.1
The terms of the demand
to remove the obstruction, which demand was given on 20 May 2011;
11.2
What
occurred from date of the demand namely 20 May 2011 to the date of
the removal of the obstruction on 24 June 2012;
11.3
When the obstruction
ought to have been removed;
11.4
What the envisaged
consequences would be should such obstruction not be removed by a
particular date;
11.5
In which respect
Defendant failed to exercise reasonable care to ensure that the fibre
optic cable was located correctly some three
years prior to Plaintiff
entering into the relevant contract with SANRAL.
11.6
What
role, if any, SANRAL played, in over-seeing the work done by
Defendant, and what Defendant’s liability, if any, was for
any
deficient or negligent acts or omissions.
12.
It is clear from the
Particulars of Claim and in particular paragraph 24 thereof that the
legal duty (what Plaintiff refers to as
the “duty of care”)
only and solely arose in the present context from Plaintiff’s
notification of the obstruction
on 19 May 2011 and its demand, in
unknown terms, to remove the obstruction. The negligence relied on
occurred some three years
prior to the demand on the one hand and on
the other by Defendant failing to remove the obstruction timeously.
The details referred
to in the previous paragraph were not pleaded.
The notification and demand, according to the Particulars of claim,
are therefore
the sole origin of the alleged legal duty.
12.1
Apart
from the allegations not pleaded, the following must be kept in mind:
there is no relationship whatsoever between the Plaintiff
and
Defendant, be it on a contractual basis or otherwise;
12.2
It was not pleaded why a
simple notification, and a demand with unknown terms, would entitle
Plaintiff to create a basis for a legal
duty, the breach of which
would entitle it to damages;
12.3
Plaintiff
was in a contractual relationship with SANRAL in terms of generally
accepted conditions and terms, but it was not pleaded
that such terms
did not include any provisions based on a delay or risks in that
context.
13.
The
question therefore arises in the context of all of the above whether
it would be reasonable to impose a liability on the Defendant
for the
harm resulting from the conduct relied upon? In my view the answer
must be an emphatic no. In the absence of factual allegations
that
would underpine the opinion of the community that justice demands
that liability be imposed, I cannot hold that a notification
and a
demand such as in the given context, would without further ado,
result in delictual liability. Society would not regard such
imposition of liability as reasonable. I do not wish to repeat the
relevant facts, but the relevant time periods are of importance
as
well as the fact that no details as to the notification and demand
whatsoever were pleaded. I am also of the view that should
a mere
notification and demand such as in the present case be sufficient, it
could open the door for litigation in so many other
comparable
instances that the consequences would be unimaginable. A mere
unspecified demand can in my view not create a legal duty
such as is
contended for in the present case. The legal convictions of the
community would not regard Defendant’s conduct
in the present
context as wrongful. One also cannot gather from the Particulars of
Claim in any event what the nature and extent
of such alleged duty
was or would have been. One does not know what Defendant’s
alleged negligence consisted of. One has
no explanation for the time
delays. I have also had regard to the provisions of
s. 22
of the
Electronic Communications Act 36 of 2005
and the
decision of
Mobile Telephone Networks (Pty) Ltd v SMI Trading
CC
2012 (6) SA 638
SCA
and
Tshwane City v Link Africa
and Others
2015 (6) SA 440
(CC) at par. 113
, in the context
of whether Defendant had required the consent of SANRAL in this
particular instance to lay the fibre optic cable,
although this is
certainly not decisive of the issue before me.
14.
Even if I accept that
Defendant was negligent in that it laid the cable without such
consent, the other allegations relied upon
by Plaintiff in the
Particulars of Claim do not in my view establish a cause of action on
the basis that Defendant owed Plaintiff
a legal duty and that its
breach thereof was wrongful. I must therefore uphold Defendant’s
contention that the Particulars
of Claim read as a whole do not
disclose a cause of action. As far as the question of costs is
concerned Plaintiff’s Counsel
contended that Defendant ought to
have taken the exception in the period provided for by the
Rules
of Court
, or at least in any event not at the day of the
trial. In general terms this is so, and in this instance there is
insufficient
reason to deviate from this general guide-line. A Court
in any event has a discretion in the context of cost orders.
The
following order is therefore made:
Plaintiff’s
Particulars of Claim are set aside;
Plaintiff
is given leave within 30 days from the date of this order to amend
the Particulars of Claim if so advised;
Plaintiff is to pay
the costs of this action up to the date when Defendant ought to have
taken the exception in terms of the Rules
of Court. The costs
incurred thereafter are to be paid by Defendant.
_____________________________
JUDGE H.J FABRICIUS
JUDGE OF THE GAUTENG HIGH
COURT, PRETORIA DIVISION
Case
number: 29896/14
Counsel
for the Plaintiff: Adv G. P. van Rhyn
Instructed
by: Bresler-Becker Attorneys
Counsel
for the Defendant: Adv M. Seape
Instructed
by: Mahlangu Attorneys
Date
of Hearing: 8 & 9 March 2016
Date
of Judgment: 24 March 2016 at 10:00