Construction Law – Governance of the architectural professions as a whole and the legislative framework determining inter alia architects’ scope of practice and registration requirements

1. In terms of the Council for the Built Environment Act, 43 of 2000 (hereinafter referred to as “the Built Environment Act”), a “registered person” means a person registered in terms of any of the professions’ Acts. These professions’ Acts are defined as the following: 1.1 The Architectural Profession Act, 2000. 1.2 The Project and Construction Management Professions …

Medical Law – Res Ipsa Loquitur debate

It has until recently been accepted that the maxim of res ipsa loquitur (the facts speak for themselves) does not find application in cases involving medical negligence in accordance with the findings of the Appeal Court in the matter of Van Wyk v Lewis [1924 AD 438].  This position was recently reconsidered by the Supreme …

Construction Law – Certain instances where the NHBRC could be held liable by a home owner for rectification of major structural defects in a new home

INTRODUCTION: 1. In the unreported matter of Stergianos v National Home Builders Registration Council 2012 JDR 1982, the Plaintiff, Mr Stergianos, issued summons against the National Home Builders Registration Council (“NHBRC”), alleging that the NHBRC is obliged to remedy the defects evident in his home. 2. In our law the Housing Consumers Protection Measures Act 95 of …

Construction Law – The nature of on-demand guarantees

1.  In construction contracts, on-demand guarantees or unconditional performance bonds are a means of guaranteeing the performance of the contractor to its employer.  2.  On-demand guarantees are similar to letters of credit or promissory notes payable on demand. 3.  In Lombard v Landmark & Others  the following was held: “… The guarantee creates an obligation to pay upon …

Construction Law – Homebuilders must register with the NHBRC before commencement of building works to claim payment

1. The judgment in the matter of Cool Ideas 1186 CC (“Cool Ideas”) v Anne Christine Hubbard (“Hubbard”) & Minister of Justice and Constitutional Development confirms finally that an homebuilder is not entitled to receive compensation for a house constructed for a housing consumer unless registered in terms of the Housing Consumer Protection Measures Act.  BACKGROUND …

Engineering Law – Should an Engineer’s duties be extended beyond its contractual obligations?

The question of what the extent of an engineer’s duties are, usually come into play whenever an engineered structure fails.  One prominent element to this question is whether an engineer’s duties extend beyond a contractual obligation with its employer.     In Strijdom Park Extension 6 (Pty) Ltd v Abcon (Pty) Ltd this issue was raised …

Contract Law – Our Courts’ approach to exemption clauses and the potential impact of the Consumer Protection Act thereon

Introduction: 1. Exemption clauses are provisions in a contract in terms of which a party is protected from certain claims in respect of damages, loss, negligence, non-performance etc. An example of an exemption clause is the following: “The buyer shall not have or acquire any claim against the seller, nor shall the seller be liable in …

Medical law – “Negligent misstatement” of a patient’s HIV status: what risk befalls the health care provider?

 1. In the matter of Geldenhuys v National Health Laboratory Services 2014 JDR 1656 (GP) the appellant (Ms Geldenhuys) instituted action against the respondents (the National Health Laboratory Services and the MEC for Health and Welfare, Limpopo) for damages suffered as a result of an alleged negligent misstatement in respect of her HIV status. The …

Medical Law – A claim for compensation arising from a failed sterilisation could include damages suffered during parturition

Introduction 1. It is trite that our law recognises a claim by parents in respect of the financial costs involved in supporting a child born following a failed sterilisation. The matter of The Premier of the Western Cape Province v Loots 2011 (SCA) 32, however, concerned a delictual claim for damages suffered by the mother following …

Insurance Law – The consequences of non-fulfilment of a condition precedent contained in an insurance policy: a recent decision

In Screening and Earthworks (Pty) Ltd v Hollard Insurance Company Limited the South Gauteng High Court recently considered whether a ‘condition precedent’ in an insurance policy placed a positive contractual obligation on an insured. The judgement is noteworthy to players in the machinery-breakdown-insurance field, but also to liability and indemnity Insurers. The Plaintiff claimed the …

Construction Law – The Binding Nature of Interim Adjudication Awards

In the matter of Stefannuti Stocks vs S8 Property the Court reconfirmed the enforceability of an adjudicator’s decision by court prior to final arbitration.  It also confirmed that an agreement between the parties that a decision is binding and shall be given effect to without delay, unless and until it is revised, requires immediate implementation. …

Construction Law – Where employer fails and/or refuses to make payment of a certified amount to the contractor

The standard JBCC Principal Building Agreement (“the Agreement”), more specifically Clause 31.1, determines that the principal agent should issue an interim payment certificate each month until the issue of a final payment certificate. The Agreement defines a “payment certificate” as a document issued by the principal agent on a monthly basis certifying the amount due …

Product Liability – Our Courts’ approach to product liability claims and the impact of the Consumer Protection Act thereon, with specific reference to manufacturers’ and suppliers’ liability

Prior to the Consumer Protection Act, Act 68 of 2008, (hereinafter referred to as “the Act”) coming into force, a person seeking to recover damages from a supplier in respect of defective goods could rely on either contractual remedies or the common law warranty against latent defects. A person seeking to recover damages from a …

Medical Law – Recognition of “wrongful life” claims and its impact on Medical Malpractice in South Africa

The Constitutional Court in H v Fetal Assessment Centre 2014 JDR 2720 (CC) set the framework within which the High Court is to consider the recognition of a child’s claim against a medical practitioner who misdiagnosed a congenital disability or some serious medical condition pre-natally, resulting in the child being born with a disability.  Such …

Construction Law – Demand Guarantees and the Fraud Defence

Guardrisk Insurance Company Ltd v Kentz (Pty) Ltd The law underlying the avoidance by a Guarantor of its obligations to make payment to a beneficiary under a demand guarantee is clarified and reaffirmed by the most recent ruling by the Supreme Court of Appeal in the case of Guardrisk Insurance Company Ltd vz Kentz (Pty) …

Construction Law – Liability of Agent to Compensate Contractor for its loss in terms of the JBCC Principal Building Agreement

In the matter of Hyde Construction CC v Blue Cloud Investments 40 (Pty) Ltd 2011 JDR 0954 (WCC) the Court had to decide whether a contractor can succeed with a delictual claim against an agent to compensate the contractor for its loss. The main dispute arose between the contractor and the first defendant, the employer, …

Contract Law – Suspensive Conditions – Fulfillment or Waiver?

In the recent matter of Aeterno Investments 216 (Pty) Ltd v Ramashala 2011 JDR 0657 (GNP), the applicant succeeded with an application for an order declaring an agreement of sale of immovable property to be valid and binding in circumstances where the respondent alleged that the agreement had lapsed.    A discussion of the judgement follows. …

Medical Law – Requirements for valid surrogacy agreements and the sanctions that medical practitioners may face if these requirements are not complied with

Medical practitioners involved in artificial fertilisation or involved in rendering assistance in artificial fertilisation in respect of surrogacy should familiarise themselves with the relevant provisions of the Children’s Act 38 of 2005 (hereinafter referred to as “the Act”) or face possible criminal sanctions in respect of a contravention of the Act. Prior to the Act …

Medical Law – To turn or not to turn a critically ill patient – that is the question

The Supreme Court of Appeal handed down judgement on 26 September 2014 in the matter of Medi-Clinic Limited v George Vermeulen (unreported).  The issue before the court was the avoidability of bedsores in critically ill patients.  In coming to a decision, the court reaffirmed the principles involved when critically assessing directly opposing expert evidence. Mr …

Construction Law – Calling up Guarantees…or are they Suretyships?

Insurers, guarantors, contractors and employers should take note of two recent judgments from the Supreme Court of Appeal developing the law governing Construction Guarantees. The first, Dormell Properties 282 Cc V Renasa Insurance Co Ltd And Others is a matter where the employer made a claim on the guarantee against the guarantor, following upon the …

Construction Law – Contractor’s Lien and the Bona Fide Possessor

A lien can be described as the common law right of retention of property to secure payment for its improvement.  In a construction dispute, it is often available to the contractor to secure payment for work executed on a building site where the employer fails to make payment for building work executed. This general principle was …