Enviroserv Waste Management v Hawkins Hawkins and Osborne South (Pty) Ltd (CA95/2006) [2007] ZAECHC 56 (25 July 2007)

Enviroserv Waste Management v Hawkins Hawkins and Osborne South (Pty) Ltd (CA95/2006) [2007] ZAECHC 56 (25 July 2007)

The court held that the letter of 8 September 1997 constituted proper written notice under clause 50 of the contract. The letter provided sufficient detail regarding the nature and extent of the adverse physical conditions (hard shale at the 30 metre elevation) and the additional work required (drilling and blasting), enabling the engineer to make an informed decision. The court found that the contract did not require the notice to refer explicitly to clause 50 or to use formal language, only that it be in writing and contain the necessary factual information. The respondent's failure to construe the letter as proper notice amounted to professional negligence and breach of contract....

Citation
[2007] ZAECHC 56
Parties
Appellant: Enviroserv Waste Management; Respondent: Hawkins Hawkins and Osborne (South) (Pty) Ltd
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
25 July 2007
Case Number
CA95/2006
Procedural Posture
Civil Appeal / Appeal Against Judgment of Sandi J in the South Eastern Cape Local Division
Outcome
Appeal allowed with costs; order of the court a quo set aside; matter remitted to trial court for determination of further issues.
Judges
Jones, Schoeman, Dambuza
Legal Topics
Construction Contracts, Notice Requirements, Professional Negligence, Damages for Breach, Contractual Interpretation
Commercial and Corporate Civil Procedure Construction Contracts Notice Requirements Professional Negligence Damages for Breach Contractual Interpretation

Case Brief

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Parties

Enviroserv Waste Management

Appellant

Hawkins Hawkins and Osborne (South) (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal Against Judgment of Sandi J in the South Eastern Cape Local Division

Legal Issues

  1. 1 Whether the contractor's letter of 8 September 1997 constituted proper notice in terms of clause 50 of the contract.
  2. 2 Whether the respondent breached its contract with the appellant by negligently failing to construe the letter as proper notice.
  3. 3 Whether the absence of notice precluded the appellant's claim for damages against the respondent.

Ratio Decidendi

The court held that the letter of 8 September 1997 constituted proper written notice under clause 50 of the contract. The letter provided sufficient detail regarding the nature and extent of the adverse physical conditions (hard shale at the 30 metre elevation) and the additional work required (drilling and blasting), enabling the engineer to make an informed decision. The court found that the contract did not require the notice to refer explicitly to clause 50 or to use formal language, only that it be in writing and contain the necessary factual information. The respondent's failure to construe the letter as proper notice amounted to professional negligence and breach of contract....

Court Disposition

Appeal allowed with costs; order of the court a quo set aside; matter remitted to trial court for determination of further issues.

Orders

  • The appeal is allowed with costs, including the costs of two counsel.
  • The order of the court a quo is set aside and replaced with an order declaring that the defendant's authorized representative, Mr M Whitnall, was in breach of his contractual obligations to the plaintiff by failing to construe the letter of 8 September as proper notice in terms of clause 50 of the general conditions...