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
>>
2013
>>
[2013] ZAGPPHC 56
|
|
Labuschagne NO and Others v Theron and Another (14523/09) [2013] ZAGPPHC 56 (15 February 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 14523/09
DATE:15/02/2013
IN
THE MATTER BETWEEN
LABUSCHAGNE
GS
N.O.
..............................................................
First
Plaintiff
LABUSCHAGNE
CL
N.O.
..............................................................
Second
Plaintiff
NELAHGN.O .
…..............................................................................
Third
Plaintiff
and
THERON
BC
…................................................................................
First
Defendant
THERON
BC
N.O.
............................................................................
Second
Defendant
JUDGMENT
LEDWABA
J:
[1]
The plaintiffs, property developers, instituted an action against the
defendants jointly and severally for the damages they
suffered as a
result of the defendants’ breach of contract and /or
alternatively the defendants’ negligent performance
or
non-performance of their professional services in a proper manner.
[2]
When the trial commenced the plaintiffs applied for the separation of
merits and quantum proceedings and for the trial to continue
on the
merits only. The defendant opposed the application. After considering
submissions by the parties’ legal representatives
I ruled that
the trial would proceed on the merits and the quantum proceedings
would stand over.
[3]
The citation and locus standi of the parties in the pleadings were
not an issue. For convenience the plaintiffs would hereafter
be
referred to as plaintiffs, unless it is necessary to make specific
reference to each of them. The first defendant is the second
defendant's employee and he is a registered practicing engineer. The
first defendant at material times in casu acted within the
course of
the second defendant's business.
[4]
The important facts which are not in dispute are the following:
4.1
During or about June 2005, the first defendant, alternatively the
first defendant on behalf of the second defendant, orally
accepted a
mandate from the plaintiffs, in accordance with the provisions of a
contract to be concluded for construction works,
to be the
plaintiffs’ agent and to render professional services as an
engineer. The first defendant’s duties and responsibilities
included to manage and/or monitor the project.
4.2
The plaintiffs concluded a contract with a construction company,
Rent-A- Dozer (PTY) Ltd (the construction company) on 5 May
2006 at
Groblersdal. The said contract allowed the first defendant to act as
an agent for the plaintiffs.
[5]
The facts which are in dispute are the following:
5.1
Whether the first defendant failed to inspect and to ensure that the
domestic water pipelines on the property were SABS approved;
5.2
whether the first defendant failed to ensure that the sewerage system
on the property was properly constructed to suit its purpose;
5.3
whether the first defendant failed to ensure that the kerb stones in
the streets on the property are of a sufficient quality;
5.4
whether the first defendant failed to ensure that the road surfaces
were properly tarred with the correct material;
5.5
whether the first defendant failed to ensure that the storm water
drainage system was correctly constructed to allow proper
drainage
and flow of storm water:
5.6
whether the plaintiffs would be entitled to claim damages in the
event of the first defendant, failed to perform his mandate
in a
proper and professional manner and without negligence.
[6]
Basically the plaintiffs’ project involved the construction of
houses, roads, sewerage and storm water pipes and the water
reticulation as per the approved design plans, see Bundle M. The
Construction commenced in May 2006.
[7]
The third plaintiff testified and the plaintiffs called two expert
witnesses Mr Andre Fullard and Mr Phlippie C Viljoen, both
are
professional engineers. Their curriculam vitae and reports were
handed in and their expertise was not placed in dispute. The
first
defendant testified and called one expert witness Mr Fitz whose
qualifications and expertise was also not placed in dispute.
The
evidence of the witnesses will be summarized and be dealt with in the
course of this judgment.
[8]
Mr Viljoen testified that, on the plaintiffs’ instructions, in
February 2008 he went to the site to inspect the project
that the
first defendant managed which the construction company constructed.
[9]
The plaintiffs showed him the problems that they identified on the
constructed works that the first defendant had to manage.
[10]
Briefly the problems related to the sewerage system that did not
function properly according to how it was designed, the water
pipes
that burst because substandard pipes were used on the project, the
kerb stones that were of a poor quality, the road surface
that was
not properly constructed and the drainage system was not properly
erected.
[11]
The works that were not properly executed needed to be fixed and the
substandard quality of the material used needed to be
replaced.
Re:
PIPES
[12]
Mr Viljoen testified that during his inspection he discovered that
all the house connection pipes, which connected the individual
water
meter on each stand to the main water line were of a substantial
quality. Upon closer inspection realised that the pipes
were not
SABS approved, but instead the pipes used were made of a recycled
plastic, which burst easily. He recommended to the Plaintiffs
to
replace all the house connection pipes with SABS approved pipes.
Thereafter no leakages or bursting occurred.
[13]
Mr Viljoen also testified that it was glaringly obvious that the
pipes were of substandard quality, and that he could see it
with the
naked eye upon first glance and that any experienced engineer, would
have realized immediately that the pipes were of
sub-standard
quality. He further testified that no reasonable consulting engineer
would have approved the use of pipes not specified,
and that, if he
was approached regarding the installation of pipes not complying with
the specifications, he would have insisted
that the contractor supply
him with a certificate to show that non-SABS pipes were of a
sufficient quality to be fit for the purpose
it was intended to
fulfill.
[14]
The first defendant’s testimony on the pipes was that the
construction company enquired from him whether pipes other
than the
approved SABS pipes could be used for the house connections. He
approved the use thereof on the basis that the construction
company
would be liable should any problems arise. He further said he
approved the use of pipes not SABS approved, as he did not
expect the
construction company to be so “stupid” as to use
substandard quality pipes. Importantly, this is a direct
contradiction of what the first defendant obviously told his first
attorney of record who informed the plaintiffs, in a letter
dated 15
February 2008, that:
“
Ons
klient stem saam dat die waterpype nie SABS goedgekeur is nie, maar
wys ons u daarop dat hierdie pype deur die kontrakteur aangekoop
en
geinstalleer is sonder dat ons klient op daardie stadium daarvan
bewus was. ”
[15]
Mr Fitz the defendants’ witness testified as to the probable
causes of the pipes bursting. It is clear from the evidence
that he
never inspected the site or the pipes that were used by the
construction company. In my view, testimony in this regard
amounts to
more speculation. Furthermore his version was in any event not put
to Mr Viljoen to enable him to comment on it.
Re:
SEWERAGE LINE
[16]
Mr Viljoen testified that the sewerage fine, had been laid at such an
angle that at the point where it was to be connected
to the Municipal
main sewerage line, it was about one metre too low for the connection
to be made. The sewerage line had to be
reconstructed and an
additional pipeline of about 800m had to be installed to connect it
with another municipal main line, so that
the sewer line should
function properly.
[17]
During cross-examination, it was put to Mr Viljoen that the first
defendant would testify that he based his calculations regarding
the
depth of the sewerage line that was to be connected to the municipal
main line on a surveyor’s report which was provided
to him by
the plaintiffs, and that the surveyors report indicated the depths of
the municipal main line incorrectly. It was a result
of this
erroneous information that the sewer pipe to be connected to the
municipal main line ended up at the wrong depth.
[18]
However, the first defendant, during his evidence in chief and during
cross- examination, then retracted this version and contended
that
the reason why the connection could not function properly was as a
result of blockages and too high flow in the municipal
main line.
This new version was never put to Mr Viljoen. When the third
plaintiff testified he said the first defendant never told
him that
there was a problem with the report of the surveyor and that it was
difficult to do a proper connection.
Re:
KERB STONES
[19]
Mr Viljoen stated in his report, and testified that the kerb stones
which were installed were of a very inferior quality. Properly
constructed kerb stones life span is about 25 - 30 years and all of
the kerb stones had to be replaced because they had some cracks-
[20]
The first defendant testified that the construction company assured
him that the kerb stones complied with the required specifications
and during October 2006 test results were submitted to him. Mr
Viljoen said that the tests done by Civillab were not correctly
done,
in that the concrete was tested on the 69th day instead of the 28th
day. This was so because concrete rapidly gains strength
within the
first 28 days thereafter gains strength very slowly, so that concrete
which tested to 27 mpa or 30 mpa after 69 days
may well have had a
strength of lower than the specified 25mpa on the 28th day. It was
only put to Mr Viljoen that the first defendant
never allowed wrong
or low quality kerb stones to be installed.
[21]
According to Mr Fitz such a test is still valid as the strength after
28 days could be extrapolated from the strength after
69 days.
However, both Mr Fitz and the first defendant failed to do such
extrapolation.
Re:
ROAD DEVELOPMENT
[22]
Mr Viljoen testified, he found that the size of the crushed stones
used was only 6.7mm, instead of 19mm together with two coats
of
bitumen. The final coat of tar had not been applied. He further said
as a result of improper coating the stones did not adhere
to the road
surface. He further said it was clearly visible with the naked eye
that the coating was not properly done. No test
needed to be
performed as the substandard condition of the tarred surfaces were so
obviously visible. Mr Viljoen also said that
the life expectancy of a
properly tarred road surface is about 25- 30 years.
[23]
To fix the roads the plaintiff’s had to remove the loose
stones, apply the required layers and quantity of bitumen, put
13,7
mm crushed stone and the stones had to be sealed properly.
Re:
STORM WATER
[24]
Mr Viljoen said water was damming and to Fix the problem the had to
install pipes which were to be connected properly to fix
the damming.
[25]
It was put to Mr Viljoen that the first defendant’s version is
that he was not on site when the storm water pipes were
constructed
and his services were terminated before the problem could be fixed.
LIABILITY
FOR DAMAGES
[26]
The first defendant, as an engineer, is bound by the provisions of
the
Engineering Profession Act 46 of 2000
and he is registered within
the Bargaining Council of South Africa (The Council). The code of
conduct drawn by The Council provides
the following in respect of
registered engineers that they:
“
1(b)
Execute their work with integrity and sincerity and in accordance
with generally accepted norms of professional conduct.
2(b)
Must discharge their duties to the respective employers of clients
effectively and competently.
2(c)
Must discharge their duties to their respective employers or clients
with integrity, fidelity and honesty.
2(f)
Must provide work or service of a quality and scope, and to a level,
which are commensurate with accepted standards and practices
in the
profession. ”
[27]
The aforesaid code of conduct forms part or regulates the
relationship between the engineer and the client even if such
relationship
has not been reduced to writing it is an implied
relationship, in Alfred McAlpine & Son (Pty) Ltd v Transvaal
Provincial Administration
1974 (3) SA 506
A at 531 this court
explained and articulated how the implied relationship should be
viewed in the following:
In
legal parlance the expression "implied term".,, is used to
describe an unexpressed provision of the contract which
the law
imports therein, generally as a matter of cause, without reference to
the actual intention of the parties. The intention
of the parties is
not totally ignored. Such a terms is not normally implied if it is in
conflict with the express provision of
the contract. On the other
hand it does not originate in the contractual consensus: it is
imposed by the law from without. Indeed,
terms are often implied by
the law in cases where it is by no means clear that the parties would
have agree to incorporate them
in their contracts. Such implied terms
may derive from the common law, trade usage or custom, or from
statute. In a sense “implied
term” is, in this context, a
misnomer in that in content it simply represents a legal duty (giving
rise to a correlative
right) imposed by law, unless excluded by the
parties, in the case of certain classes of contracts, it is
naturalium of the contract
in question. ”
[28]
The plaintiffs and the defendants did not sign a detailed contract
setting out the duties and responsibilities of the defendants.
In the
guidelines document used to determine the duties of an engineer, the
defendants on the circumstances of this case should
be categorized
under ‘Level’ Monitoring as it was agreed between the
parties, further taking into account the fees
they charged. See
exhibit J Guideline
Scope
of Services and Tariffs of Fees for Persons Registered in terms of
the Engineering Profession Act No 46 of 2000 (Government
Gazette No
27422 1 April 2005) section 2.1.5 thereof reads as follows:
“
2.1.5
Constructing Stage.
The
overall contract administration and co-ordination, as well as the
construction monitoring of the execution of the works in accordance
with the contract, including all or any of the following:
2.1.5
(3) Overall contract administration and co-ordination, as well as
construction monitoring of the execution of the works for
compliance
with the contract and attending site meetings on a combined average
frequency of at least one day every two weeks for
the duration of the
construction of the specific works for which the consulting engineer
is engaged or at such more frequent intervals
as the consulting
engineer may deem necessary.
2.1.5
(4) Directing construction monitoring operations, but excluding
detail day to day construction monitoring of the works and
contract
administration as provided for under clause 2.2.2.
2.1.5
(8) Issuing instructions to contractors on behalf of the client.
2.1.5
(9) Issuing certificates or recommendations for payment of
contractors and submitting regular reports regarding works finances
and anticipated completion dates and final costs.
2.1.5
(12) General inspection of materials and equipment for compliance
with the original design and tender, including checking
of marks or
documentation for adherence to national and international standards
and advice to the client regarding further inspection
and testing of
such materials and equipment as may be necessary and arranging for
such inspection and testing to be carried out
on behalf of and at the
client’s expense.
2.1.5
(14) Agreeing final quantities with contractors, compiling final
accounts and issuing final payment certificates.
2.1.5
(16) Evaluating results of contractors commissioning procedures and
tests and witnessing final performance or acceptance tests
on site,
only, but excluding day to day routine tests. ”
[25]The
first defendant, as the plaintiffs’ agent had to administer and
co-ordinate the execution of the works so that the
construction
company should be in compliance with the contract.
[30]
He had to, inter alia, direct and issue instructions to the
construction company, submit regular reports regarding the works,
finances and anticipated completion dates.
[31]
The first defendant did not submit a written report nor testify that
he reported to the plaintiffs that there was a problem
with the
connection of the connection of the sewerage line to the main sewer
and make recommendations or give instructions as to
how the said
problem could be solved.
[32]
The first defendant dismally failed, in my view, to inspect the pipes
and neglected his responsibilities because the construction
company
told him that it would be liable should problems arise.
[33]
If the kerb stones were properly tested, the roads were properly
tarred and the correct material was used the roads and the
kerb
stones would not have deteriorated so soon as Mr Viljoen testified.
[34]
After the plaintiffs noted the problems and Mr Viljoen did an
inspection to check what could have caused the said problems.
Mr
Viljoen was a credible witness and he had no reason to fabricate his
evidence, for instance, if the storm water was flowing
smoothly there
would not be any reason that there should be a reconstruction.
[35]
The first defendant did not keep a so-called ‘entry-book’
which according to the evidence and the general operating
standards
of engineers had to be kept on site to record the activities on site.
The first defendant’s failure to adhere to
the general level of
skill and diligence exercised by engineers constitutes negligence.
[36]
In Kohler Flexible Packaging (Pinetown)(Pty) Ltd v Marianhill Mission
Institute & Others 2000 (1) S/A 141 (D) at 144E The
court held
that:
“
Although
the full terms of the consulting contract and the construction
contract have not been pleaded, it is clear that in each
case the
alleged duty to design and/or construct the buildings with due care,
skill and diligence arose from the contract, that
the alleged failure
to do so constituted a breach of contract and that the consequent
damages allegedly suffered by the plaintiff
are those which would
place it in position it would have occupied if the contract had been
properly performed."
[37]
In the matter of Van Immelzeel & Pohl and Another v Samsncor Ltd
2001 (2) SA 90
(SCA) a contractor had entered into a Civil
Professional Services Contract with the employer for the construction
of a water pipeline
and pump installation. The employer also
concluded a contract with the engineer for the rendering by the
engineer of all professional
services required for the supervision of
the installation of the water pipeline and pump installation in terms
of the construction
contract. Certain defects in the construction of
the pipeline resulted in the employer suing both the contractor for
damages for
breach of the construction contract and the engineer for
breach of the professional services contract. It is necessary to
refer
to the following facts in that judgment in some detail:
37.1
Some months after the pipeline was certified by the engineer as
complete the pipeline started leaking and leaks occurred thereafter
at regular intervals.
37.2
The leaks in the pipeline were caused by corrosion which resulted
from the substandard coating and lining of the pipes and
the fact
that the system installed to preclude corrosion was in the
circumstances ineffective. Sections of the pipeline were not
properly
prepared as the coating on sections of the pipeline was well below
the specification requirements.
37.3
The Court held that it was clear on the evidence led at the trial
that the contractor was responsible (a) for the purchase
and
installation of the pipeline with substandard coating and lining and
(b) for the installation of the initial ineffective protection
system. It was common cause that the parties to the construction
contract were the firm “The contractor” and the employer
and that the parties to the Professional Services contract were the
engineer and the employer.
[38]
In casu the issue of joinder and non-joinder of the construction
company was not raised. However, i think having regard to
the nature
of the relationship between the plaintiffs and the defendants the
non-joinder should not be an obstacle to determine
whether the
defendants are liable or not.
[39]
The facts of -this case clearly show that it is important for an
engineer to properly supervise and inspect the works with
due skill
and care.
[40]
The first defendant cannot rely on the competence and/or experience
of the construction company to do the job. The reason why
the
plaintiffs appointed them as agents is because they had special
knowledge and skill to do the work.
[41]
On the evidence and documents before me I think the plaintiff
succeeded on the balance of probabilities that the defendants
did not
perform their professional duties properly with due skill and
diligence as the plaintiffs’ agents and were therefore
negligent. Their negligence caused the plaintiff to suffer damages.
[42]
The defendants were negligent in their conduct and/or omission in
that:
42.1
They failed to inspect and ensure that the domestic pipeline on the
property known as Groblersdal Ext 23 (the “Property”)
were SABS approved.
42.2
They failed to ensure that the sewerage system on the property
complies with the minimum requirements as set out in the Guidelines
for Provision of Engineering Services in Residential Township.
42.3
They failed to ensure that that kerb stones in the streets on the
Property are of sufficient quality.
42.4
They failed to ensure that the road surfaces were prepared
sufficiently and/or correctly.
42.5
They failed to ensure that the storm water drainage system was
constructed in such a manner as to allow for proper drainage
of storm
water.
42.6
they failed to perform their duties pertaining to construction
monitoring in a manner that is expected of a professions! engineer.
42.7
They failed to ensure the contract executed the construction works in
compliance with the construction contract.
[43]
The engineer issued a payment certificate and completion certificate
in respect of defective works and materials provided by
the
contractor and so caused the Plaintiffs to pay for defective
workmanship and materials which were useless to the plaintiffs,
which
in turn necessitated additional remedial work at the cost of the
Plaintiffs.
[44]
I therefore make the following order:
The
defendants are jointly and severally liable to pay the plaintiffs’
proven or agreed damages arising from their negligence
in respect of
what is set out in paragraph 42.1 - 42.7.
A P LEWABA
JUDGE
OF THE HIGH COURT
HEARD
ON: 11 April 2012
FOR
THE PLAINTIFF: Adv R Strydom
INSTRUCTED
BY: M Wentzel Inc, Groblersdal
FOR
THE FIRST DEFENDANT: Adv Maunatlala
INSTRUCTED
BY: Andrew Miller and Associates, Pretoria