Masstores (Pty) Ltd v Murray & Roberts Construction Ltd. (Pty) Ltd. and Another (573/2007) [2008] ZASCA 94; 2008 (6) SA 654 (SCA) ; [2009] 1 All SA 146 (SCA) (12 September 2008)

Masstores (Pty) Ltd v Murray & Roberts Construction Ltd. (Pty) Ltd. and Another (573/2007) [2008] ZASCA 94; 2008 (6) SA 654 (SCA) ; [2009] 1 All SA 146 (SCA) (12 September 2008)

The court held that clause 9.2.7 of the building contract is clear and unambiguous in allocating the risk of physical loss or damage to the existing structure and its contents to the employer, regardless of whether the contractor's conduct was negligent or grossly negligent. The contract's structure, including its risk and insurance provisions, supports this interpretation. The express reference to negligence in clause 9.2.6, contrasted with its absence in clause 9.2.7, indicates a deliberate allocation of risk. The court rejected Masstores' arguments regarding ambiguity and the narrow construction of exemption clauses, finding that the only reasonable interpretation is that the...

Citation
[2008] ZASCA 94
Parties
Appellant: Masstores (Pty) Ltd; Respondent: Murray & Roberts Construction (Pty) Ltd; Respondent: S Roche Projects
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
12 September 2008
Case Number
573/2007
Procedural Posture
Civil Appeal / Appeal From Exception Upheld in High Court
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
MPATI, LEWIS, MLAMBO, KGOMO, MHLANTLA
Legal Topics
Exemption Clause Interpretation, Contractual Risk Allocation, Negligence, Gross Negligence, Building Contracts, Insurance Liability
Commercial and Corporate Civil Procedure Land and Property Exemption Clause Interpretation Contractual Risk Allocation Negligence Gross Negligence Building Contracts +1 more

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Parties

Masstores (Pty) Ltd

Appellant

Murray & Roberts Construction (Pty) Ltd

Respondent

S Roche Projects

Respondent

Procedural Posture

Civil Appeal / Appeal From Exception Upheld in High Court

Legal Issues

  1. 1 Does clause 9.2.7 of the building contract exempt the contractor from liability for negligent or grossly negligent damage to the existing structure and its contents?
  2. 2 Is the exemption clause ambiguous or inconsistent, permitting an interpretation that allows liability for negligence?
  3. 3 Does the contract allocate risk for damage to the existing structure to the employer, regardless of fault?

Ratio Decidendi

The court held that clause 9.2.7 of the building contract is clear and unambiguous in allocating the risk of physical loss or damage to the existing structure and its contents to the employer, regardless of whether the contractor's conduct was negligent or grossly negligent. The contract's structure, including its risk and insurance provisions, supports this interpretation. The express reference to negligence in clause 9.2.6, contrasted with its absence in clause 9.2.7, indicates a deliberate allocation of risk. The court rejected Masstores' arguments regarding ambiguity and the narrow construction of exemption clauses, finding that the only reasonable interpretation is that the...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs incurred by the employment of two counsel.