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Strijdom Park Extension 6 (Pty) Ltd. v Abcon (Pty) Ltd. (662/95) [1998] ZASCA 57; 1998 (4) SA 844 (SCA); [1998] 4 All SA 117 (A) (28 August 1998)

80 Reportability
Contract Law
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Brief Summary

Contract — Building contract — Liability for defects — Appellant, Strijdom Park Extension 6 (Pty) Ltd, claimed damages from respondent, Abcon (Pty) Ltd, for the replacement of a failed concrete slab constructed under a building contract — Respondent denied liability, asserting compliance with design specifications — Trial court dismissed the claim based on a contractual clause absolving respondent of liability — On appeal, the primary issue was whether respondent breached the contract and if the slab's failure was attributable to faulty engineering design — Appeal upheld; the contractual clause did not absolve respondent from liability for defects arising during the defects liability period, and the evidence indicated that the slab's failure was due to inadequate construction practices.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were an appeal to the Supreme Court of Appeal against the dismissal of a contractual damages claim arising from defective building work. The appellant, Strijdom Park Extension 6 (Pty) Ltd, was the employer under a standard-form building contract, and the respondent, Abcon (Pty) Ltd, was the building contractor.


The matter originated as an action in the Witwatersrand Local Division in which the employer sued both the contractor and the consulting engineer, Mr E C Pienaar, for damages arising from the failure of a steel-reinforced concrete floor slab in a warehouse. During the trial, the claim against the engineer was settled, leaving only the claim against the contractor. The court a quo (Goldstein J) dismissed the claim against the contractor on a single ground: that the contractor was absolved from liability by a clause in the building contract dealing with defects liability and certification. The present appeal proceeded with the leave of the trial court.


The general subject-matter of the dispute concerned liability for the catastrophic failure and replacement cost of an engineer-designed, reinforced concrete slab, and in particular whether the contractor had breached its obligation to construct in a proper and workmanlike manner, whether any defect was attributable to engineering design, and whether contractual defects-liability and certification provisions shielded the contractor from damages.


2. Material Facts


It was common cause on the pleadings that the slab had deflected and cracked. The appellant alleged that the slab had failed completely and required replacement, and that this resulted from the contractor’s breach of contract in failing to construct the slab properly and in a workmanlike manner. The respondent denied breach and pleaded that it had constructed the slab in accordance with the engineer’s design, contending that the cracking and deflection were attributable to defective engineering design.


On appeal, it was no longer disputed that the slab ultimately had to be replaced, but it remained disputed whether the contractor’s conduct constituted a contractual breach and whether engineering design defects contributed causally to the failure.


Construction began in September 1989, and the slab was cast on 3 November 1989. Before concreting, the engineer endorsed a document headed “Site Instruction” confirming: “Checked and approved reinforcement to slab (to basement). Column head levels correct height.” The contractor used independent subcontractors to assemble the reinforcement, supply and pump ready-mixed concrete, and level the concrete.


When the slab was later demolished for replacement, examination established (and this was treated as undisputed) that the slab failure was caused by the collapse of the upper reinforcing steel mat, which in turn resulted from the collapse of the steel stools used to keep the upper and lower mats apart during concreting. Many stools were found bent and splayed, and contact between the upper mat and stools had been limited to one bar resting on the centre of each stool’s horizontal piece. It was common cause before the SCA that the stool collapse occurred during casting, when concrete was poured.


By May 1990, cracking had appeared in an edge beam and circular cracking appeared on the slab over two of the free-standing columns. The employer appointed another engineer, Mr N A Barker, who attributed the cracking over the columns to inadequate reinforcement over column heads due to the use of an older design code (CP 114) allowing less reinforcement. The edge-beam crack was linked to overloading by the tenant and was repaired by suspending the fractured beam from a new beam above it. Circular cracking, however, became more widespread over time.


The architect issued a certificate of practical completion on 5 September 1990, triggering the contract’s three-month patent defects liability period. The cracking was not included in a defects list; in fact no defects list was issued. Nor was a certificate of completion or final certificate issued under the contract’s relevant clauses.


In July 1991, remedial work was performed by enlarging column heads under the slab, but later a different and more extensive cracking pattern developed: longitudinal cracks between columns, eventually forming complete cracks from one column to another. By mid-1992 the cracks widened and appeared on the underside. In 1993, the slab was condemned and replaced.


Expert evidence for the employer (Combrink, Barker, and Harbuz) was that maintaining the reinforcement mats in correct position was the contractor’s responsibility and a matter of construction practice rather than design. They identified two critical construction requirements: placing two bars of the upper mat on each stool where possible, and tying the stool feet to the lower mat. On their version, failure to do so caused stool collapse, the consequent collapse of the upper mat during pouring, and eventual slab failure; they also stated such collapse would have been readily observable during concreting and should have been detected and addressed by the contractor’s site personnel.


The contractor’s witnesses (Naude and Savage) denied observing mat collapse and advanced no persuasive alternative explanation; suggestions such as trampling after casting were rejected on the expert evidence. The SCA’s assessment of the record favoured the employer’s expert evidence as clear and uncontradicted by competing expert opinion.


3. Legal Issues


The central legal questions were whether the contractor breached the building contract by failing to construct the slab properly and in a workmanlike manner, and whether that breach caused the slab failure (including whether engineering design defects contributed to causation).


A further central question concerned the interpretation and application of the contract’s defects-liability and certification provisions, particularly clause 13 (defects liability and lists) read with the concept of defects not discoverable by a “reasonable examination,” and the extent to which these clauses limited or excluded the contractor’s liability given that no defects list and no completion/final certificates had been issued.


The dispute involved a mixture of fact (what caused the failure; whether the contractor’s construction was defective), application of law to fact (whether the proved construction shortcomings amounted to breach and causation), and interpretive and evaluative judgment (the meaning of “reasonable examination,” its timing, and the standard of reasonableness in the circumstances known at the relevant time). It also raised an evidentiary/legal allocation question as to onus: who bore the burden of proving that a defect would or would not have been disclosed by a reasonable examination for purposes of clause 13.3.3.


4. Court’s Reasoning


On breach and causation, the SCA held that the evidence established clearly that the slab failed because the contractor did not carry out the construction in a proper and workmanlike manner. The court accepted the expert evidence that the inadequate support and securing of the reinforcement (one bar per stool contact and failure to tie stool feet) was a matter of construction practice falling within the contractor’s responsibilities. The court further considered it significant that displacement and collapse of the upper mat would have been observable during pouring and that the contractor’s site personnel ought to have detected it and taken corrective steps.


The respondent’s contention that engineering design defects contributed to the failure was rejected. The allegation that the stools were too flimsy was not pursued in a manner consistent with the pleaded and trial particulars, was not put to the appellant’s witnesses, and was unsupported by evidence demonstrating inadequate stool strength. As to the engineer’s site “approval” of reinforcement, the SCA did not accept that this shifted responsibility for construction methods from contractor to engineer. The court emphasised that the engineer’s contractual duty was to the client, and that the contractor decides how construction work is carried out and cannot avoid liability for defective execution by attributing it to professional approval where the issue is one of proper workmanship and construction practice. The court referred to English authority for the proposition that professional intervention duties are limited and do not generally relieve a contractor of responsibility for construction methods. On the evidence, the SCA concluded that the contractor’s breach was the sole cause of the slab failure.


The remaining question was whether clause 13 (as relied on by the trial court) nevertheless shielded the contractor from liability. The court held that the trial court approached clause 13.3.3 incorrectly by asking whether an x-ray or core sampling would have been “reasonable” merely because it was cheap and effective. The SCA stated that the correct inquiry was whether, at the relevant time, any such investigation was reasonably required at all, given the facts then known.


The SCA first determined the timing of the “reasonable examination” contemplated by clause 13.3.3. Drawing on the reasoning in East Ham Borough Council v Bernard Sunley and Sons, Ltd [1965] 3 All ER 619, the SCA held that the examination contemplated by the comparable final-certificate clause is an examination at the stage when certification is to occur (after completion and rectification of patent defects). In relation to clause 13.3.3 (defects liability), the SCA reasoned that the clause speaks as at the end of the patent defects liability period, when the architect would compile the defects list, and that the “reasonable examination” is therefore tied to that point in time. The court interpreted clause 13.3.1 as referring to defects that in fact appear (become patent) within the defects period, rather than extending the clause to defects that merely could have appeared if special investigations were undertaken regardless of circumstances.


On the issue of onus, the SCA reasoned from principle that a contractor who has breached a contract is prima facie liable at common law, and a party invoking a contractual protective provision bears the burden of bringing itself within that protection. The court distinguished the position where a final certificate provides conclusive evidence (subject to latent defects not discoverable by reasonable examination) from the present situation where the contractor sought protection based on the defects list regime and the absence of a defects list. On the SCA’s construction, the employer needed only to show that the mat collapse did not appear within the defects period, and a contractor seeking to avoid liability for an unlisted defect had to prove that the defect was one which a reasonable examination would have disclosed. The pleadings were also considered: the employer did not plead non-discoverability, while the respondent pleaded that the defect was one which a reasonable examination would have disclosed, thereby accepting the burden in any event.


In evaluating “reasonableness,” the SCA stressed that it is not determined solely by whether a test would have been inexpensive or effective in hindsight. Rather, it depends on what a reasonably careful architect would have regarded as an appropriate line of investigation given what was known at the end of the defects period. On the evidence, Barker had diagnosed the circular cracking as due to inadequate column-head reinforcement (a known phenomenon) and recommended enlarging the column heads; by late November 1990 Pienaar made the same recommendation. Both Barker and Harbuz testified that nothing known by the end of 1990 indicated displacement of the upper mat; Barker also stated that similar cracking had occurred in other projects without any reinforcement displacement. The architect did not testify, but the SCA applied an objective approach: a reasonable architect would have consulted the engineers, and with those expert opinions to hand, there was no reason to require intrusive investigations such as coring or x-ray examination to look for mat displacement.


The SCA rejected as ex post facto the trial court’s reasoning that earlier design inadequacies in other structural elements justified opening up the slab, and that the specified concrete cover could have led to discovery of excessive cover and thus mat displacement. The SCA held these conclusions were not supported as indications that, at the time, the circumstances reasonably called for such investigations.


Accordingly, the SCA concluded that the contractor failed to prove that, as at the end of the defects period, reasonableness required a more extensive examination that would have disclosed the displacement of the upper mat. The defect was therefore not one which would have been disclosed by a reasonable examination at the relevant time, and the contractual clause did not absolve the contractor of liability.


5. Outcome and Relief


The appeal was upheld. The Supreme Court of Appeal set aside the order of the Witwatersrand Local Division and substituted it with an order granting judgment for the plaintiff (appellant).


The respondent (defendant) was ordered to pay R585 928,86 as damages (the replacement cost of the slab as agreed by counsel). The respondent was also ordered to pay the qualifying fees of specified expert witnesses and the costs of suit, including the costs of two counsel. The costs of the appeal, including the costs of two counsel, were likewise awarded in favour of the appellant.


Cases Cited


Clayton v Woodman and Son (Buildings) Limited [1962] 2 All ER 33 (Court of Appeal); [1962] 1 WLR 585.


Oldschool v Gleeson (Construction) Limited 4 BLR 103.


East Ham Borough Council v Bernard Sunley and Sons, Ltd [1965] 3 All ER 619 (House of Lords).


Legislation Cited


No legislation was cited in the judgment.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The Supreme Court of Appeal held that the employer proved that the slab failure was caused solely by the contractor’s breach of the building contract, in that the contractor failed to construct the slab in a proper and workmanlike manner by allowing the reinforcing stools to collapse and the upper reinforcement mat to become displaced during concreting.


The court further held that the contractor failed to establish a contractual defence under clause 13 based on the absence of a defects list. On the proper interpretation of the “reasonable examination” qualification, assessed at the end of the patent defects liability period and against what was reasonably called for in the circumstances then known, the defect (upper mat displacement) was not shown to be one that would have been disclosed by a reasonable examination. The contractor was therefore liable in damages for the replacement cost of the slab and associated costs.


LEGAL PRINCIPLES


The judgment applied the principle that a contractor under a building contract bears responsibility for executing the works in a proper and workmanlike manner, including taking appropriate construction measures to ensure reinforcement is correctly positioned and remains so during concreting. Where failure results from deficient construction practice, the contractor cannot avoid liability by attributing the deficiency to a consulting engineer’s approval when the matter is properly one of workmanship and construction method.


The judgment further applied principles of contractual interpretation to defects-liability provisions. In clauses preserving liability for defects not disclosed by a “reasonable examination,” the relevant examination is assessed at the time contemplated by the contractual regime—in this case, at the end of the patent defects liability period for purposes of defects listing. The reasonableness of an examination is assessed objectively by reference to what a reasonably careful professional would have considered appropriate on the facts known at the relevant time, and not by hindsight based on the later-discovered cause of failure.


Finally, where a contractor seeks to rely on a contractual provision limiting or excluding liability (a confession-and-avoidance type defence), the contractor bears the onus of proving that the requirements for the protective clause are met, including (in this context) that the relevant defect would have been disclosed by a reasonable examination at the relevant time.

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Strijdom Park Extension 6 (Pty) Ltd. v Abcon (Pty) Ltd. (662/95) [1998] ZASCA 57; 1998 (4) SA 844 (SCA); [1998] 4 All SA 117 (A) (28 August 1998)

Case No 662/95
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter of:
STRIJDOM PARK EXTENSION 6 (PTY) LIMITED
Appellant
and
ABCON (PTY) LIMITED
Respondent
CORAM
: HEFER, HOWIE et ZULMAN JJA
DATE OF HEARING
: 17 August 1998
DATE OF JUDGMENT
: 28 August 1998
JUDGMENT
/HOWIE JA
:...
2
HOWIE JA
:
Appellant was the employer in terms of a building contract
and respondent the contractor. The work involved the erection of a
warehouse, including the laying of an engineer-designed, steel-reinforced
concrete slab separating the ground-floor from the basement. About two
years subsequent to appellant's having taken occupation the slab failed
comprehensively and was replaced. As a result, appellant sued
respondent and the engineer, Mr E C Pienaar, in die Witwatersrand Local
Division for damages, being i a the cost of replacement. The claim was
based primarily on the alleged breach by respondent of the building
contract and the alleged breach by Pienaar of the agreement in terms of
which appellant employed him to design the slab. During the trial the
claim against Pienaar was settled. At the conclusion of the hearing the
Court a quo (Goldstein J) dismissed the claim against respondent. The
learned Judge did so on the single ground that respondent was absolved
3
from any liability by a particular clause of the building contract. With the
trial Court's leave, appellant appeals.
On the pleadings it was common cause that the slab had
deflected and cracked. Appellant alleged, however, that the slab had
failed completely and required replacement, which state of affairs was due
to respondent's breach of contract in having failed i a to construct the slab
in a proper and workmanlike manner. Respondent denied that allegation
and went on to aver that it had constructed the slab in accordance with
Pienaar's design and that the slab had deflected and cracked because such
design was defective in many respects which were enumerated in the plea
and in respondent's particulars for trial.
On appeal it was no longer in dispute that the slab had had
to be replaced but it was still in contention whether respondent had
breached the building contract and whether the failure of the slab was at
least partly attributable to faulty engineering design.
4
The undisputed evidence was that when the slab was
demolished in order to have it replaced, examination showed that the
slab's failure had been due to the collapse of the upper of two criss-cross
mats of steel bars that had been encased in the concrete to reinforce it.
Prior to casting the slab, when the two mats were assembled, they were
kept apart by steel stools on which the upper mat rested. Each stool was
made from a single length of tubular mild steel 10 nun thick, bent in such
a way as to comprise a horizontal piece, a vertical leg at either end and an
extended horizontal foot on each leg, stability being provided by the feet
pointing in opposite directions.
The examination referred to demonstrated that the collapse
of the upper mat was due, in turn, to the collapse of the stools, many of
which were found bent out of shape, with their feet splayed. It was also found that contact between the upper mat and the stools had
been limited
to one bar of the mat resting on the centre of the horizontal piece of each
5
stool. It was common cause before us that the stool collapse must have
occurred during the casting of the slab when concrete was poured over
and into the network of reinforcing steel.
The building contract in issue was in the standard form
approved and recommended by, amongst others, the
Institute
of
South
African Architects and the
South
African
Building
Industries Federation.
It recorded respondent's undertaking to build the warehouse in
accordance with the drawings and specifications prepared by appellant's
architect, Mr R Schleifer of ACT Projects CC. It is appropriate to cite
here certain provisions of the contract. They are material to the outcome
of the appeal and they also need stating before further recounting the
relevant facts. The clauses in question read as follows:
"13.1 Definitions
For the purposes of this clause:
13.1.1. 'the completion list' shall mean the written list
detailing the work remaining to be done on those
6
parts of the Works handed over to the Employer by
the Contractor:
13.1.2
'the preliminary completion list' shall mean the
written list in which is specified all such work as is
required to be done by the Contractor in order to
entitle him to receive a certificate of practical
completion:
13.1.3
'the defects list' shall mean the written list of patent
defects in which the Architect has specified any
defects identified by him at the end of the patent
defects liability period:
13.1.4
'the patent defects liability period' shall mean the
period beginning on the date of practical completion
of the Works, or the relevant parts thereof, and
terminating three months from that date.
13.2 Practical Completion
13.2.1 When, in the opinion of the Architect, the Works, or
any parts thereof which the Contractor has agreed to
hand over earlier to the Employer in accordance with
7
the provisions of the schedule to these terms, are
reasonably complete the Contractor shall hand over
to the Employer the Works, or such completed parts,
as the case may be, provided that the practical
completion certificate for the Works as a whole shall
not be issued prior to the date specified in the
schedule to these terms unless by agreement between
the parties. The Architect in each such case shall
issue forthwith to the Employer and to the Contractor
a certificate of practical completion and, for those
parts handed over, a completion list. The Contractor
shall not, in respect of those parts handed over, be
obliged to execute work other than that specified in
the completion list.
13.2.2
Work remaining to be done at the date of practical
completion shall be subject to later inspection by the Architect within fourteen days of written notification
by the Contractor that such work has been completed.
The period during which the Contractor is liable for
defects in such work shall commence on the date of
approval by the Architect.
13.2.3
Practical completion of the Works, or any relevant
parts thereof, shall be deemed for all purposes of this
13.2.2
8
agreement to have taken place on the day named in
such certificate of practical completion.
13.2.4 Should the Architect fail to issue a certificate of
practical completion and the completion list, he shall,
within fourteen days of receiving written demand
from the Contractor, issue to the Contractor the
preliminary completion list.
13.3 Defects Liability
13.3.1
Any defects in the workmanship and materials and
any damage caused to the Works thereby, which may
appear within the patent defects liability period, due
to materials or workmanship not being in accordance
with this agreement shall be made good by the Contractor at his own cost.
13.3.2
With fourteen days after the expiration of the patent
defects liability period the Architect shall deliver to
the contractor the defects list of items which are
required to be made good by the Contractor. The
Contractor shall forthwith commence the work
required to be performed and shall complete the same
within a reasonable period. The Contractor's
13.3.1
9
liability to make good in terms of the sub-clause shall
be restricted to the items specified in the defects list.
13.3.3 Nothing in clause 13 shall be construed so as to restrict or remove in any way the Contractor's
liability for any defects or insufficiencies in the
Works or materials which a reasonable examination
would not have disclosed.
13.4
Certificate of Completion
When, in the opinion of the Architect, the work
specified in the defects list has been completed, he
shall issue a certificate of completion of the Works.
The completion of making good defects shall be
deemed for all purposes of this contract to have taken
place on the day named in such certificate.
25.5
Upon the issue of the certificate of completion of the
Works in terms of clause 13.4 and provided that the
Architect has timeously received the documents
referred to in clause 10.2 the Architect shall issue a
final certificate of the value of the Works executed by
the Contractor. . .
10
25.6
Where a penultimate certificate has been issued in
terms of clause 25.5 then, within one month of the
issue of such penultimate certificate and provided the
Architect has timeously received the documents
referred to in clause 25.5 he shall issue a final
certificate of the value of the Works executed by the
Contractor.
25.7
A final certificate [that] has been issued in terms of
clause 25.5 and 25.6 save as regards all defects and
insufficiencies in the Works or materials which a
reasonable examination would not have disclosed,
shall be conclusive evidence as to the sufficiency of
the said Works and materials, and of the value
thereof."
To enlarge the factual picture for present purposes,
construction work began in September 1989. The slab was cast on 3
November of that year. Prior to the pouring of the concrete of the slab
Pienaar endorsed a document issued by respondent, and headed "Site
Instruction", with the following words above his signature:
11
"Checked and approved reinforcement to slab (to basement).
Column head levels correct height."
For the construction of the slab respondent engaged independent
contractors respectively to assemble the reinforcing steel, to supply and
pour ready-mixed concrete and finally to level the concrete. The pouring
was effected by pumping the concrete through a large pipe over the
assembled reinforcement. On completion of its construction the slab
rested on what might be termed edge columns on all four sides and was
suspended over the basement by eight free-standing columns on the
concrete floor, or surface bed, of the basement. On two sides, where
there were retaining walls against the natural earth reinforced concrete
edge beams were interposed between the slab and the edge columns.
By May 1990 shear cracking had appeared in one of the edge
beams and circular cracking on the surface of the slab over two of the free-standing columns. (In what follows only the free-standing
columns
12
are relevant and I refer to them simply as "the columns".) Accordingly
appellant appointed another engineer, Mr N A Barker, to investigate and
report on the integrity of the slab. He was of the view that the cracking
over the columns was due to inadequacy of steel reinforcement over the
column heads. This was because the slab had been designed in
accordance with the no longer current Code of Practice CP 114, which,
unlike later codes, permitted less reinforcement over columns. As
regards the crack in the edge beam, there seemed little doubt that it
stemmed from appellant's tenant, who had by then taken occupation,
having overloaded the slab in storing building materials. This cracking
was remedied by suspending the fractured beam from a new beam
constructed immediately above it.
The circular cracking, however, became widespread as the
months passed, occurring over more and more columns. Barker
discussed the problem with Pienaar on various occasions but remedial
13
action was not soon forthcoming. In the interim, on 5 September 1990
and in accordance with clause 13.2.1 of the building contract ("the
contract"), the architect issued a certificate of practical completion of the
entire project. In terms of clause 13.1.4 of the contract that marked the
start of the three-month patent defects liability period. (For convenience
I shall refer to it simply as "the defects period".) This came and went
without implementation of a resolution to the cracking problem. The
architect (by this time Mr R Schleifer had died and had been succeeded
in that capacity by his son) did not list the cracking as a defect under clause 13.1.3. In fact no defects list was issued. Nor was
a certificate
of completion in terms of clause 13.4 issued or a final certificate pursuant
to clause 25.
Eventually, in July 1991, action was taken to remedy the
cracking over the columns. The solution had been determined upon by
Barker in conjunction with Pienaar and involved enlarging the column
14
heads immediately beneath the slab so as to give it greater support.
Despite those measures, cracking of a different sort, and far more
extensive, later appeared on the top surface of the slab. These cracks
were longitudinal and began at one column and extended some way
towards the next. They got bigger and eventually met, resulting in a
complete crack from one column to another. By mid-1992 they had
widened and had even appeared on the undersurface of the slab. This
situation worsened and ultimately, in 1993, the slab was condemned and
replaced.
The presently relevant evidence advanced on behalf of
appellant was given by three witnesses. The first was Mr A D
Combrink, a director of appellant and a qualified civil engineer with many
years' experience as a civil engineer and building contractor. The second
was Barker, a qualified civil engineer, having retired after a long career
in practice as such. The third was Mr H T Harbuz, a qualified civil
15
engineer still in active practice.
The evidence for respondent was that of Mr I
V
J Naude
and Mr D S Savage. Naude was respondent's general foreman and site
agent on the job in question and Savage was its assistant contracts
manager.
Combrink, Barker and Harbuz were unanimous in their
expressed view that assembling the reinforcement mats and maintaining
them in the correct position was the contractor's responsibility and not a
matter of engineering design. According to them, proper construction
practice demanded i a that wherever possible two bars, not one, of the
upper mat be placed on each stool and that the feet of the stools be tied
to the lower mat. (Two bars per stool was attainable in respect of most
of the slab.) Had those requirements been met, the weight of neither
the concrete nor the casting would have caused displacement. In the
event, the failure to meet those requirements caused the collapse of the
16
stools, the concomitant collapse of the upper mat and the eventual failure
of the slab. It is also clear from the evidence of these three witnesses that
the depression and collapse of the upper mat would have been easily
discernible while the concrete pouring was in progress. Naude and
respondent's other personnel involved with the slab casting ought to have
been on the lookout for such eventuality, should have seen the collapse
and have taken appropriate action by stopping the process and calling in
Pienaar.
From Naude's evidence it emerges that he had no knowledge
of placing steel reinforcement. He saw nothing wrong with the way the
steel contractor had assembled the reinforcement in question and could
not recall whether the feet of the stools were tied. It is plain that he left
every relevant decision in this regard to the steel contractor and to Pienaar
who was on site before and at the start of the pouring and who, as already
mentioned, signed a site instruction to the effect that he had checked and
17
approved the reinforcement.
Naude added that Combrink was also on site during the
pouring and in fact inspected and approved some of the shuttering used
in the casting of the slab. Combrink denied this when it was put to him
and maintained that he only arrived after the pouring was over and the
concrete was being levelled. Significantly, Naude described Combrink
as a very difficult client who continually intervened and found fault with
respondent's workmanship. A study of the evidence leaves little doubt
that Combrink, whether from the nature of his profession and experience
or his personality, demanded careful adherence to practice and
specification in the quest for a sound job of work. Had he noticed that
the steel assembly was deficient in either of the two crucial respects
referred to it is highly likely that he would have complained and sought
rectification. The fact that he did not raise such complaint makes it
improbable that Naude's allegation as to Combrink's presence is true.
18
As far as the collapse of the upper mat is concerned, Naude
said there was nothing of the sort to be seen. Had he observed it he
would have stopped the pouring immediately. If the top mat had
collapsed to the extent that it was found to have done, he said he would
have had no difficulty seeing that happen, if it occurred, when the poured
concrete impacted upon the steel. However, if it occurred later for any
reason, then he could not have seen it. Asked how the collapse could
possibly have resulted, Naude ventured the explanation that it was
possibly due to workers having trampled on the concrete after it had been
cast. That possibility was effectively refuted by appellant's witnesses
however, who said that workers' boots would indeed have sunk into the
wet concrete for some small way but not so deeply that they would have
caused displacement of the upper mat. Concerning his observations
while the pouring was in progress, Naude professes to have paid very
close attention to proceedings. He said he focused on the concrete as it
19
was being poured right in front of him and was unaware of what was
going on even four metres away. Had that been true, it is difficult to
fathom how he could have missed seeing the upper mat collapsing.
Moreover, given his reliance on the steel contractor and Pienaar, it is
unlikely that Naude would have expected any mishap. Indeed it is, in the
overall assessment, probable that he placed just as much reliance upon the
other contractors and that is the reason for his having failed to observe
what plainly did occur.
As far as Savage's evidence is concerned, it was his
responsibility to co-ordinate the various stages of the construction work,
not to involve himself with the work actually being done or the quality of
it. Nevertheless he claimed to have seen the reinforcement before
concreting began and not to have seen any displacement. He said he
noticed nothing wrong with the steelwork and was unaware that the feet
of the stools had not been tied. Savage said he was on site during the
20
entire time that the concrete was being poured and saw nothing unusual
happen to the top mat of the reinforcement. He, too, claimed that
Combrink had been on site while the slab was being cast and pointedly
referred to Combrink's omission to point out anything untoward about the
steel. He, himself, saw nothing wrong in there being only one bar per
stool. Like Naude, Savage was unable to offer any feasible explanation
for the failure of the slab.
In the view the trial Judge took of the matter it was
unnecessary to record his impressions of the witnesses or to evaluate their
testimony. Despite the absence of any findings in those respects,
however, it is plain from the record that the evidence of appellant's three
witnesses was clear, logical and persuasive. And it was not contradicted
by other expert opinion. Combrink, of course, had an interest in the
outcome of the litigation but he was supported by Barker and Harbuz who
were disinterested witnesses. By contrast, the evidence of Naude and
21
Savage reads unimpressively. The mere fact that neither saw that the feet
of the stools had not been tied detracts critically from the worth of their
professed observations. Neither could advance any satisfactory
explanation for the collapse of the top mat, something which undeniably
happened during the concreting operation and winch, according to the
expert evidence, should easily have been noticed by someone in Naude's
position His primary responsibility was to see to it that the
reinforcement was not displaced. The evidence that Combrink was on
site during the casting of the slab and observed the steel in position seems
to me to have been a limp attempt to show that nothing could have been
amiss and that in any event he approved. I have already pointed to the
likelihood that Combrink, especially on Naude's and Savage's own
assessment of him, would have complained had he truly seen the manner
in which the reinforcement had been assembled.
On the evidence, therefore, appellant established very clearly
22
that the slab failed because respondent did not carry out its construction
in a proper and workmanlike manner, thereby breaching the building
contract.
Respondent's counsel contended that defective engineering
design was also involved in the failure of the slab. The two grounds for
this contention were mat the stools were of insufficient rigidity and that
Pienaar approved the way in which the reinforcement was installed. It is
true that the design defects alleged in the plea included the allegation that
the stools were "too flimsy" but, significantly, this was not repeated in
respondent's particulars for trial which, at appellant's invitation, detailed
numerous respects in which it was proposed to show that Pienaar's design
had been defective. In addition, this allegation was never put to
appellant's witnesses. More importantly, there is no evidence to suggest,
much less demonstrate, that the stools were indeed of inadequate strength.
As to Pienaar's approval of the steel, it was argued that this
23
had the effect of incorporating in his design the methods by which the
steel contractor had put the reinforcement together. On the evidence,
Pienaar's design did not show that there had to be two bars of the top mat per stool nor that the feet of each stool had to be fastened.
The evidence makes it plain, nonetheless, that it was not Pienaar's duty to incorporate
those details in his design and that, as mentioned before, those two
requirements are part and parcel of proper construction practice and solely
the contractor's responsibility. Moreover, the engineer's contractual
duty is to his client, not to the contractor. It is not even his duty to the
contractor (although it might well be his duty to his client) to intervene if
the latter appears to be going wrong unless it is apparent to him that the
contractor does not know his business and is going to go wrong. In short,
it is the contractor's decision how he carries out the construction work
and he cannot pass the blame for defective work on to the engineer (or
architect, for that matter). In these respects see
Clayton v Woodman and
24
Son (Buildings) Limited
[1962] 2 All ER 33
(CA) at 391 - 40 A and 40
I - 41 E([1962]
1 WLR 585
at 593 - 595) and
Oldschool v Gleeson
(Construction) Limited
4 BLR 103
at 123 and 130 -131. It has been said
that a duty to intervene would arise if the contractor appears set on an
"incredible act of folly" (see
Jackson and Powell on Professional
Negligence
4
th
ed 211 par 2.127). However, Pienaar was not called to
describe precisely what he did see of the steel assembly and if, as the
authorities have it, he was obliged only to see that the design had been
implemented and not to ascertain how respondent was carrying out the
work, he would have had no reason to determine how many bars per stool
there were or whether the stools had been fixed. Moreover, he was
entitled to expect, as was appellant, that respondent would in any case,
once concreting started, watch out for any displacement and take self-
evidently appropriate action if it occurred..
It follows mat appellant proved that respondent's breach was
25
the sole cause of the failure of the slab.
This being so, the only possible defence left to respondent
was that based on clause 13. In upholding it, the Court a quo took the
view that clause 13.3.3 required one to postulate an examination which
would have revealed the defect and then to enquire whether such
examination would have been reasonable in all the circumstances.
Applying that approach, the Court said that it was common cause (as
indeed it was) that an x-ray of the slab or removal of sample concrete
cores would have revealed displacement of the upper mat and that both
procedures were cheap and effective. The Judge then said:
"Could anyone embarking on either or both in 1990 be
regarded as having acted otherwise than reasonably? It
would seem self-evidently, not."
Before considering his reasons for that answer it is necessary
to state that the question that elicited it was misdirected. The true
26
enquiry is not whether such tests would have been unreasonable. The
question is whether any investigation as to the state of the upper mat was
reasonably required at all.
Preliminary to a consideration of that question is the need,
firstly, to determine the time of the "reasonable examination" referred to
in clause 13.3.3. For respondent it was contended that such time was any
time throughout the construction process, not just at the end of the defects
period. In this regard the words
"defects and insufficiencies in the works or materials which
a reasonable examination would not have disclosed"
were considered by the House of Lords in
East Ham Borough Council v
Bernard Sunley and Sons, Ltd
[1965] 3 All ER 619.
The majority
decision (there was only one dissenting speech on this point) was based
on an interpretation of the clause in that case which was the counterpart
of clause 25.7 in the present matter. It was held that the envisaged
examination was one at the date from which the clause speaks i e
27
preparatory to, and for the purpose of, issuing a final certificate, in other
words, after completion of the work and rectification of any patent
defects. I respectfully agree.
There is reason, of course, to give the words in question a
different meaning in clause 13.3.3, but only somewhat. The provisions of clause 13.3.1 impose liability on the contractor for defects
winch
appear, that is to say, become patent, within the defects period and are
included in the architect's defects list. That the contractor also retains
liability for defects which a reasonable examination would not have
disclosed must mean that he is liable for such defects as remain
undisclosed by such means after the defects period ends. To compile
the defects list the architect therefore would need to wait for expiry of the
defects period. In these circumstances, and in order to give the word
"patent" the extended meaning the contract obviously intends, the word
"appear" in clause 13.3.1 must, I think, include a meaning corresponding
28
to "appear as a result of reasonable examination". Accordingly, I
consider that clause 13.3.3 speaks as at the end of the defects period
and that it is then that the examination referred to in clause 13.3.3 must
be conducted.
The next preliminary question raised in argument that must
be dealt with before discussing the evidence was one of onus: whether
it was for appellant to show that the mat collapse would not have been
disclosed by a reasonable examination or for respondent to show the
converse. The Court a quo found no need to resolve this issue.
As a starting point, it is undoubtedly so that the contractor
who has breached his contract is liable at common law for damages and
if he seeks the protection of a contractual provision he is, in effect, (even
if he denies the breach, as respondent did) confessing and avoiding and,
in the event of proof of breach, saddled with the burden of establishing the
defence by bringing himself within the terms of the provision concerned.
29
Moreover, where, as here, resort is had to the protection of clause 13.3.2,
whereby, in specified circumstances, the contractor's liability is limited
to items on the defects list and excluded if there is no such list, the
position differs crucially from the situation where the contractor has the
protection of a final certificate. In the latter case an employer suing for
damages for defective work, who is met by the defence that a final
certificate was issued, could only overcome that defence by showing non-
discoverability of the defect despite reasonable examination. In that
event, he would, I think, bear the onus of showing such non-
discoverability. Clause 13.3.2, however, protects the contractor only
in respect of those unlisted defects to which clause 13.3.1 refers. Those
are defects "which may appear" within the defects period. The word
"may" is inappropriate. Whether or not "may appear" includes "may by
reasonable examination appear", it is obvious that if a defect does not in fact appear, or is not in fact disclosed by way of
reasonable examination,
30
then it cannot be made good and the sub-clause can have no application.
Consequently, nor can clause 13.3.2, with its limitation of the contractor's
liability. And even if the intention in using "may" was to convey
"capable of appearing by way of reasonable examination" the same
reasoning applies. The words "which may appear" must therefore simply
mean "which appear".
On that construction all that appellant needed to show to
defeat respondent's pleaded clause 13.3.2 protection was that the fact of
the upper mat collapse did not appear within the defects period. There was no need to go further and prove that reasonable examination
during
that time would not have disclosed the collapse.
A contractor's only possible remaining defence where a
defect is unlisted because it is, by the end of the defects period, neither
apparent nor disclosed by reasonable examination, is that the defect
concerned is such that a reasonable examination would have disclosed it.
31
From the above analysis it follows that the onus to establish that defence
must, as a matter of principle, be on the contractor.
In so far as the pleadings are concerned, appellant said
nothing to attract the onus. Neither in its claim nor its replication is there
any allegation that the reinforcement collapse was something which a
reasonable examination would not have disclosed. Respondent, however,
in raising its defence that the defect in the slab was not specified in a
defects list, alleged that this was a defect "which a reasonable
examination would have disclosed" thereby accepting the onus with which
principle in any event burdened it.
The final prefatory aspect is this. The reasonableness of an
examination is not determined only by its extent or expense or the ease
with which, if applied at the outset, it would have revealed what
eventually transpired to be the defect. It is also determined, in my view,
by what, at the relevant time - in this case the end of the defects period -
32
a reasonably careful architect (the
East Ham
case at 633 H) would have
considered to be an appropriate line of investigation given the facts known
at that stage.
Turning to the evidence, appellant had, as early as May
1990, engaged Barker to report on the crack in the edge beam and the
circular cracking above two columns. The former was due to overloading
which had nothing to do with the inherent integrity of the slab. Barker
was of the view that the circular cracking was not the result of the
overload, seeing that one of the columns was remote from the area where
the overloading occurred, but rather the result of inadequate steel
reinforcement over the column heads. His recommendation, as
mentioned above, was to enlarge the column heads. This was not to
eliminate existing cracks but to prevent further cracking. Pienaar made
the same recommendation in a letter to appellant on 26 November 1990,
that is to say, shortly before the expiry of the defects period. Although
33
by that time more circular cracking had become apparent, Barker did not
consider that there was any other cause. According to his evidence
nothing known by the end of 1990 gave any indication that the upper mat
had been displaced. Harbuz testified that his view would have been the
same at the time. Barker added that he had experienced such cracking in
other instances and in those cases there had been no displacement of the
reinforcement.
The architect was not called to give evidence and there is
nothing on record to show what investigations or enquiries he made.
However , applying the objective approach outlined earlier, one cannot
but conclude that a reasonable architect in the situation prevailing at the
end of the defects period would have consulted Barker. And also
consulted Pienaar
—
the slab was of the latter's design and the problem
was essentially an engineering one. No reason exists to think that Barker
would have given the architect any other diagnosis and recommendation
34
than he gave in evidence. From the record it is apparent that Pienaar
protested throughout the relevant period that the integrity of the slab was
not in danger and no doubt he would have said the same to the architect.
Had these expert views not been available or had the slab not been
engineer-designed, a reasonable architect might well have considered it
worthwhile to take core samples, but, having such opinions to hand, I
can see no reason for thinking that such architect would have disagreed
or even doubted them.
Combrink referred in a letter to Pienaar of 15 December
1990 - after the defects period - to "severe cracking". Barker said that
this was not his assessment of the cracks and that Combrink, perhaps
typically of a client, was understandably worried and thus prone to think
that the problem was worse than the symptoms suggested it to be.
The Court a quo held that it would have been reasonable for
the architect to have ordered the opening up of the slab. Two reasons
35
were advanced for that view. One was that Pienaar had provided for
inadequate reinforcement in the cracked edge beam and also in one of the
retaining walls. Therefore it would have been reasonable to check the reinforcement of the slab. The other reason was that Pienaar's
design provided for a cover of 15 mm of concrete above the upper reinforcing mat whereas if his other specifications had been adhered
to the cover
would have been far less. Accordingly, if the actual cover had been
checked it could have led to the discovery that it was in fact far greater
than specified and that this was so because the top mat had become
displaced.
To my mind, with respect, these findings constitute ex post
facto reasoning. They are also not justified by the evidence. Barker's
uncontroverted and unshaken opinion, expressed in evidence as his view
at the relevant time, was that the circular cracking had a specific cause,
well-recognised by him, unrelated to the situation of the top mat. The
36
edge beam and the retaining wall were also unrelated. Moreover, if one
had wanted to know whether the slab was adequately reinforced one
would only have had to consult the drawings and to ask Pienaar and
respondent's personnel whether they had been complied with. Except
for the amount of reinforcing over the column heads, there was no reason
to regard the reinforcement of the slab as inadequate. As for the thickness
of the cover over the top mat, there was no evidence that anything at the
time reasonably warranted an investigation into this aspect.
Accordingly, I conclude that respondent failed to prove that
as at the end of the defects period reasonableness required Barker (or
anyone else) to conduct a more extensive examination than he had. The
eventually fatal defect in the slab was therefore not one which would at
the relevant time have been disclosed by a reasonable examination.
It follows that respondent was liable to appellant in damages,
being the expense attached to replacing the slab, and that the appeal must
37
succeed.
Counsel were agreed that the damages amount to the sum of
R585 928,86, and that appellant was entitled to the qualifying fees to be specified in the order below, as well as the costs of two
counsel in both
courts.
The following order is made:
1.
The appeal succeeds, with costs, including the costs of two
counsel.
2.
The order of the Court a quo is set aside and substituted for
it is the following:
"The claim succeeds. Defendant is accordingly ordered to
pay plaintiff
—
(1)
R585 928,86 as and for damages.
(2)
The qualifying fees of Messrs COMBRINK,
BARKER, GRIFFITHS, MULCAHY, HARBUZ,
VAN BENNEKOM, THOMSON, JACKSON and
CONNOLLY.
(1)
38
(3) Costs of suit, including the costs of two counsel."
CT HOWIE
HEFER JA)
ZULMAN JA) concur

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