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)

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)

The Supreme Court of Appeal found that the respondent breached the building contract by failing to construct the slab in a proper and workmanlike manner, specifically by not assembling the reinforcement mats according to accepted construction practice. The evidence established that the collapse of the slab was due to the contractor's failure, not defective engineering design. The contractual exclusion of liability under clause 13 did not apply because the defect did not appear within the patent defects liability period and was not discoverable by reasonable examination at that time. The onus to prove that a reasonable examination would have disclosed the defect rested on the respondent,...

Citation
[1998] ZASCA 57
Parties
Appellant: Strijdom Park Extension 6 (Pty) Ltd.; Respondent: Abcon (Pty) Ltd.
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 August 1998
Case Number
662/95
Procedural Posture
Civil Appeal / Appeal From Trial Court Judgment
Outcome
Appeal upheld. Respondent held liable for damages and costs.
Judges
Howie, Hefer, Zulman
Legal Topics
Building Contracts, Breach of Contract, Contractual Exclusion of Liability, Onus of Proof, Damages for Defective Work
Commercial and Corporate Civil Procedure Building Contracts Breach of Contract Contractual Exclusion of Liability Onus of Proof Damages for Defective Work

Case Brief

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Parties

Strijdom Park Extension 6 (Pty) Ltd.

Appellant

Abcon (Pty) Ltd.

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Judgment

Legal Issues

  1. 1 Whether the respondent breached the building contract by failing to construct the slab in a proper and workmanlike manner.
  2. 2 Whether the collapse of the slab was attributable to defective engineering design or solely to the contractor's workmanship.
  3. 3 Whether the contractor could rely on the contractual exclusion of liability under clause 13 for defects not listed within the patent defects liability period.

Ratio Decidendi

The Supreme Court of Appeal found that the respondent breached the building contract by failing to construct the slab in a proper and workmanlike manner, specifically by not assembling the reinforcement mats according to accepted construction practice. The evidence established that the collapse of the slab was due to the contractor's failure, not defective engineering design. The contractual exclusion of liability under clause 13 did not apply because the defect did not appear within the patent defects liability period and was not discoverable by reasonable examination at that time. The onus to prove that a reasonable examination would have disclosed the defect rested on the respondent,...

Court Disposition

Appeal upheld. Respondent held liable for damages and costs.

Orders

  • The appeal succeeds, with costs, including the costs of two counsel.
  • The order of the Court a quo is set aside and substituted with: 'The claim succeeds. Defendant is ordered to pay plaintiff R585 928,86 as damages, the qualifying fees of specified experts, and costs of suit including the costs of two counsel.'