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 …

Alternative Dispute Resolution – Does Adjudication Work?

In the government white paper on Creating an Environment for Reconstruction Growth and Development in the Construction Industry in 1999, it was argued that the conventional mechanisms and procedures for final dispute resolution (normally arbitration or litigation) are too costly and time consuming. In March 2001 government published a draft code of practice, entitled “Adjudication …

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 – 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 …

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 …

Construction Law – Certain instances where the NHBRC could be held liable by a home owner for the 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 …

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 – Labour unrest in construction – who bears the risk?

The Medupi power station project will no doubt see claims for an extension of time for completion and claims for additional payment following recent reports of labour unrest on the construction site in Lephalale. Construction at the multi-billion power plant was temporarily suspended on 16 January 2013 for more than a week as a result …

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 …

Insurance Law – Time-Barring Clauses – What is Reasonable and Fair?

In the construction and engineering industry time-barring provisions are often included as part of the standard terms in construction agreements. These provisions often require “strict” compliance with time periods and hold significant sanction which may impact adversely on claims or other entitlements under such agreements.  Contracting parties often query the fairness and reasonableness of such provisions once …

About Us

In an industry where specialisation is key, the right combination of expertise is essential.  The founding director, Hendrik Markram, is not only an attorney, but also a qualified civil engineer and is a construction and engineering law specialist.  He draws on his technical knowledge to offer sound legal advice to the construction and engineering sectors.  …

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 – 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 …

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 – 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 – 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) …