THE LIABILITY OF THE ARCHITECT IN THE SOUTH AFRICAN LAW
McKenzie’s “Law of Building and Engineering Contract and Arbitration 7th Edition, p 129” defines an architect as “a duly qualified professional person whose function it is to design and supervise the erection of buildings.” In the Shorter Oxford English Dictionary an architect is described as “One whose profession it is to prepare plans of edifices and exercise a general superintendence over their erection.” One may only practise as an architect in South Africa if you are registered as such in terms of the Architectural Profession Act No 44 of 2000. Section 27 of this Act provides that the South African Council for the Architectural Profession must compile a code of conduct for all registered persons. Such registered persons must adhere to the terms as included in this code and failure to do so will constitute improper conduct.
The preamble of the Code of Professional Conduct, issued under BN 154 of 2007, Government Gazette 32731, 27 November 2009, provides that “it is an overriding obligation under the rules that, in carrying out professional work, a registered person is expected to act with due skill, competency and integrity”. Once an architect is appointed by the employer, a binding contract comes into existence between the parties. This means that a claim for negligence could be instituted against the architect in terms of the contract, or based on delict. Tacitly included in the terms of the agreement is that the architect does in fact have the required skills and ability to be reasonably proficient in his/her calling.
It is trite law in South Africa that a person who does not practice with the due skill and diligence will be regarded as negligent. In the Supreme Court of Appeal matter, Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA), the Court referred to the matter of Van Wyk v Lewis 1924 A.D 438 in which the test for negligence has been defined as “the failure of a professional person to adhere to the general level of skill and diligence possessed and exercised at the same time by the members of the branch of the profession to which he or she belongs would normally constitute negligence.” In the English matter of Nye Sanders & Partners v Alan E Bristow (1987) 37 BLR 92 (CA) the Court held the following with reference to the position of an architect: “Where there is a conflict as to whether he has discharged that duty [to use reasonable skill and care], the courts approach the matter upon the basis of considering whether there was evidence that at the time a responsible body of architects would have taken the view that the way in which the subject of enquiry had carried out his duties was an appropriate way of carrying out the duty, and would not hold him guilty of professional negligence merely because there was a body of competent professional opinion which held that he was at fault.”
Should it therefore be found that an architect’s conduct falls short of the conduct that would have been reasonable exercised by another person of the same profession, the architect will be held liable for damages to his/her employer.
In the recent matter of Bentel Associate International (Pty) Ltd v Loch Logan Waterfront (Pty) Ltd 2015 JDR 0323 (FB) the Court had to decide inter alia as to whether the defendant’s claim in reconvention, alleging that it has suffered damages as a result of the plaintiff’s failure to perform its obligations in a professional and workmanlike manner and without negligence, should be upheld. The Court held that “the architect’s liability is not absolute in the sense of being liable for whatever occurs. The architect is liable for substantial negligence (Dodd v Estate Cloete and Another 1971 (1) SA 376 (ECD)).” It further alluded to the matter of De Wet v Steynsrust Municipality 1925 OPD 151 where it was held that “an architect must exercise the general level of skill and diligence exercised by other persons exercising the same profession, being skilled and experienced persons.” The learned Judge referred with approval to the position in international law pertaining to the liability of the architect and quoted John R. Heisse from his article “The Measure of Malpractice” Journal of the American College of Construction Lawyers Vol 5, Nr 2, 2011: “Noting that architects and engineers deal in somewhat inexact sciences and are continually called upon to exercise their skilled judgment in order to anticipate and provide for random factors which are incapable of precise measurement the courts have reasoned that the indeterminate nature of these factors makes it impossible for professional service people to gauge them with complete accuracy in every instance.”
The benchmark regarding the standard of care that should be applied by an architect in the law of the United States has been defined in the Maine Supreme Court matter of Coombs v Beede 89 Me. 187 A 104 (1896). The Court held that the responsibility of the architect is the same as a doctor to patient or lawyer to client, in that the architect has “some skill and ability in some special employment and offers his services to the public on account of his fitness to act in the line of business for which he may be employed.” The Court further held that the undertaking of the architect implies that he/she consequently possesses the “skill and ability, including taste, sufficient to enable him to perform the required services at least ordinarily and reasonably well; and that he will exercise and apply, in the given case, his skill, ability, judgment and taste, reasonably and without neglect.” The Court then attempted to define the exclusions from the architect’s duty of care, submitting that “the undertaking does not imply or warrant a satisfactory result. It will be enough that any failure shall not be the fault of the architect. There is no implied promise that miscalculations may not occur. An error in judgment is not necessarily evidence of want of skill or care, for mistakes and miscalculations are incidents to all business of life.” Negligence should therefore be evident from the conduct of the architect and it will not suffice to simply state that a mistake was made by the architect.
In the matter of Bloomsbug Mills, Inc, v Sordoni Construction Co 401 Pa. 358 (1960), the Pennsylvanian Court confirmed that “an architect is bound to perform with reasonable care the duties for which he contracts. His client has the right to regard him as skilled in the science of the construction of buildings and to expect that he will use reasonable and ordinary care and diligence in the application of his professional knowledge to accomplish the purpose for which he is retained. While he does not guarantee a perfect plan or a satisfactorily result, he does by his contract imply that he enjoys ordinary skill and ability in his profession and that he will exercise these attributes without neglect and with a certain exactness of performance to effectuate work properly done. While an architect is not an absolute insurer of perfect plans, he is called upon to prepare plans and specifications which will give the structure so designed a reasonable fitness for its intended use, and he impliedly warrants their sufficiency for that purpose.”
When the architect thus enters into an agreement, it is implied that he/she is able to perform the work with reasonable skill and diligence. It does, however, not warrant that the result will be without fault and the architect therefore will not be held liable for the fault arising from defects in the plans because he/she does not imply or warrant a satisfactory result.