THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
JUDGMENT

Case No:   48/2009

PIETER ANDRIES PIENAAR                                           1st Appellant

MELVIN DOUGLAS CLASSEN                                       2nd Appellant

CLASSENS HOME IMPROVEMENTS CC                    3rd Appellant

and

RUSSELL JAMES BROWN                                            1st Respondent

JOHN SLOEP                                                                   2nd Respondent

DON NOEL DANIEL LAMBERTS                               3rd Respondent

VEN PROJECTS CC                                                        4th Respondent

Neutral citation: Pienaar v Brown (48/2009)[2009] ZASCA 165 (1
December 2009)

Coram:
Mthiyane, Nugent, Maya JJA, Tshiqi and Wallis AJJA

Heard:
9 November 2009
Delivered:
1 December 2009

Summary:
Claim for damages against property owner, building
contractor and his sub-contractor ─ based on negligence ─
principles applied ─ whether failure to comply with
statutory obligation under s 4(1) read with s 7 of National
Building Regulations and Building Standards Act 103 of
1977 is evidence of negligence.

___________________________________________________________

ORDER

On appeal from: Cape of Good Hope Provincial Division (Ndita J
sitting as court of first instance).

1.
The appeals are allowed.
2.
The first and second respondents are ordered to pay the appellants’
costs.
3.
The order of the court below is set aside and replaced with the
following:
‘1.
The first and second plaintiffs’ claims against the first, second and
third defendants are dismissed.
2.
The first and second plaintiffs are ordered to pay the costs of the
first, second and third defendants, jointly and severally the one paying the
other to be absolved.
3.
The fourth and fifth defendants are found to be liable jointly and
severally the one paying the other to be absolved, for whatever damages
the first and second plaintiffs might prove for injuries sustained by them
as a result of the collapse of the balcony on 25 April 2004.
4.
The fourth and fifth defendants are ordered to pay the plaintiffs’
costs of suit, jointly and severally the one paying the other to be absolved,
including the qualifying expenses of the plaintiffs’ expert witness, Mr U
Rivera and the costs of the application for absolution from the instance.’

___________________________________________________________

JUDGMENT

MTHIYANE JA (Maya JA, Tshiqi and Wallis AJJA concurring):

[1] On 25 April 2004 the first and second respondents, Mr Russell
James Brown and Mr Joseph Sloep (the plaintiffs) were injured when a
balcony on which they were standing at the house of the first appellant,
Mr Pieter Andries Pienaar, in Green Point, Cape Town collapsed. The
plaintiffs were guests at the house of the first appellant, Mr Pieter Andries
Pienaar, in Green Point, Cape Town, at a function to celebrate the
birthday of Pienaar’s life partner, Mr de Bruin. During the course of the
afternoon a car alarm went off and a number of guests including the
plaintiffs and De Bruin went out onto the balcony to see what was
happening. As they did so the balcony collapsed outwards as the screws
fixing it to the wall at the upper level pulled out of the wall and it ‘folded’
downwards until its outer edge was resting on the tiling below. The
guests on the balcony fell forward and the plaintiffs were fairly seriously
injured as a result.

[2] The plaintiffs instituted action for damages in the Cape High Court
citing as defendants Pienaar, as the owner of the property at which the
balcony collapsed; the second appellant, Mr Melvin Douglas Classen who
had been employed as the main contractor and the third appellant, a close
corporation through which Classen conducted his business; the third
respondent, Mr Don Noel Daniel Lamberts, who designed, manufactured
and installed the balcony, and his corporate entity, Ven Projects CC, the
fourth respondent who designed, manufactured and installed the balcony.

The third respondent, Mr Don Noel Daniel Lamberts, was the individual
who physically performed the work. The claim was based on their alleged
negligence in the design, construction and installation of the balcony. For
the sake of convenience the first, second and third appellants will be
referred to by their respective names and, depending on the context,
collectively as ‘the defendants’. References to Classen and Lamberts refer
also to their respective close corporations.

[3] On 23 November 2002 Pienaar, the owner of the property had
approached Classen, the builder, to provide a quote for amongst other
things, the balcony in question. On about 27 November 2002 Classen’s
corporate entity, Cape Home Improvements CC (as the third appellant
was then known), had provided separate quotes to Pienaar in respect of
various parts of the work proposed, which included a quote for the
construction and installation of a steel-framed balcony.

[4] It is common cause that Classen said to Pienaar that he did not
possess any expertise or ability to design, construct and install a steel
balcony as requested, and that an individual who possessed the necessary
expertise should be requested to carry out part of the work. Classen’s part
of the work on the balcony was limited to the laying of the meranti floor
on the steel work after it had been manufactured and installed. Classen
accordingly contacted Lamberts and requested him to provide a quote for
the proposed work.

[5] Lamberts, after taking the necessary measurements, provided a
quote for the balcony (R6500) to Classen and a general quote was
supplied by Classen to Pienaar which included the work he (Classen) was

to perform (R10944), namely the laying of meranti timber flooring after
the balcony had been manufactured and installed.

[6] Lamberts then designed, constructed and installed the balcony off
Pienaar’s main lounge on the top floor. It was a half-moon shaped steel
framed structure, approximately 3 metres long and over 1.5 metres wide
at its apex. It was largely a cantilevered construction, meaning that it was
fastened to the wall of the house without material support from below.
Holes were drilled in the wall surrounding the door reveal at parts where
the base of the balcony and the top frame abutted the wall, and the holes
were plugged with plastic plugs. The balcony was then attached to the
wall by means of coach screws 110 mm long. Allowing for the thickness
of the steel being 38 mm these penetrated the wall to a depth of some 70
mm. Apart from the screws a brace, referred to as a knee brace, was
attached underneath the balcony, near the apex of the half-moon and ran
at an acute angle to a point on the wall no more that 1 metre below the
level of the balcony. In the original design Lamberts had intended that the
balcony would be supported on its outer edge by two steel posts or pillars
but when the time came for these to be installed Pienaar objected to them
and they were not installed and instead they were adapted to form the
knee brace.

[7] No plans or approvals were sought from or granted by the local
authority as required by s 4(1) of the National Building Regulations and
Building Standards Act 103 of 1977. The sub-section provides that no
person shall without the prior approval in writing of the local authority
erect any building in respect of which plans and specifications are to be
drawn and submitted in terms of the Act. The approval by a local

authority is provided for in s 7 of the Act. It is not disputed that the
defendants were in breach of this statutory provision.

[8] At the trial the case proceeded on the question of liability only. The
court determined that for purposes of liability three issues fell to be
determined. The first was the question of negligence in respect of
Pienaar, Classen and Lamberts and their corporate entities, and quantum
stood over for later determination. The remaining two issues turned on
whether Lamberts was a sub-contractor or an independent contractor, and
whether he had been employed by Pienaar. It is now conceded that he
was Classen’s sub-contractor and the latter issues have, accordingly fallen
away leaving only the question of negligence to be determined. At the
conclusion of the trial the court found all the defendants to have been
negligent and thus liable to the plaintiffs jointly and severally, the one
paying the others to be absolved. Pienaar and Classen were granted leave
to appeal to this court. Lamberts and his corporate entity have not
appealed the decision.

[9] Pienaar’s negligence was found to have arisen firstly from his
failure to comply with the statutory requirements [s 4(1) read with s 7 of
the National Building Standards Act]. Secondly, it was held that he had
‘caused the balcony to be constructed without regard to its structural
integrity, by insisting that vertical support posts should not be used’ when
having regard to the fourth defendant’s [Lamberts’] evidence.

[10] Classen was found to have been negligent on several grounds. The
court held that:
*
he should have known that council approval was necessary before a structure
such as a balcony could be installed;

*
he had a duty ‘to investigate and advise’ Pienaar;
*
he should have foreseen the risk of danger in consequence of the work he
employed the contractor [Lamberts] to perform without council approval;
*
he was in a position to take steps to guard against the danger and he did not
take the steps in question;
*
he ought to have appointed an engineer or a structural technician;
*
he agreed ‘to change the design of the balcony and installation without virtual
supports;
*
he is liable [therefore] for the negligent conduct of his sub-contractor
(Lamberts).

[11] In Langley Fox Building Partnership (Pty) Ltd v De Valence,1 a
case in which an independent contractor was employed to perform the
work, the test for liability of the employer of the independent contractor
as it applies to cases such as the present matter, was enunciated by
Goldstone AJA as follows:
‘[T]here are three broad questions which must be asked, viz:
(1)
would a reasonable man have foreseen the risk of danger in consequence of
the work he employed the contractor to perform? If so,
(2)
would a reasonable man have taken steps to guard against the danger? If so,
(3)
were such steps duly taken in the case in question? (See also Chartaprops
16 (Pty) Ltd v Silberman.2) This emphasises the point that the liability in
these cases is personal not vicarious, and that it is not a question of the
liability of the employer being passed to the independent contractor and
thence to any sub-contractor, but a question of the respective individual
liability of each of them. As Goldstone AJA pointed out that where the
answer to the first two questions is in the affirmative does a ‘legal duty
arise, the failure to comply with which can form the basis of liability.’

1 1991 (1) SA 1 (A) at 12H-J.
2 2009 (1) SA 265 (SCA) at para 42, [2008] ZASCA 115.

[12] It bears mention that in order to satisfy requirement (3) a party is
required to take no more than reasonable steps to guard against harm to
the public. Whether or not such threshold has been achieved depends
upon a consideration of all the facts and circumstances of the case. The
fact that the harm which was foreseeable did eventually occur would not
mean that the steps taken were necessarily unreasonable. Ultimately the
enquiry involves a value judgment (See Chartaprops at para 48; Pretoria
City Council v De Jager.)3

[13] Turning to the facts of this case, it is convenient to consider the
question of Pienaar and Classen’s possible negligence vis-à-vis the
plaintiffs separately. As to Pienaar the court below found him to be
negligent on two grounds. First, he was said to be negligent in failing to
comply with the statutory requirements to submit plans in respect of the
balcony, in circumstances where a reasonable person in his position
would have made enquiries before commencing with the installation of
the balcony. Secondly, it was found that he had caused the balcony to be
constructed without regard to its structural integrity, by insisting that
vertical supports not be used in its construction. In argument it was
sought to contend that he had also failed to take adequate steps to ensure
that a competent contractor was employed, but this case was not pleaded
and it is not supported by the evidence. It can therefore be disregarded.

[14] There can be no question that as a general proposition any person
(Pienaar included) who causes a two metre high balcony to be erected at
his home would foresee the risk of harm to a person stepping onto it if it
was not properly secured. As such he would have been expected to take
reasonable steps to avoid harm to such a person who might be injured in

3 1997 (2) SA 46 (A) at 55H-I.

the event of the structure collapsing. The real question before us is what
steps should have been taken and whether Pienaar took those steps to
avoid the risk of harm to the plaintiffs in terms of requirement (3) of the
Langley Fox test as set out in paragraph 11 above.

[15] As already indicated Pienaar did not submit any plans for the
balcony in question as he had done previously when he did alterations
and additions to his house in 2002. He did not make enquires from his
builder, Classen, as to whether plans were required for undertaking this
type of work. Consequently the question that arises is whether this failure
rendered Pienaar liable in damages arising from the collapse of the
balcony. In the way the case has been pleaded it does not appear that the
plaintiffs are relying on the breach per se as creating liability or providing
them with a right to claim damages. How one goes about determining
whether the statute provides for such a right of action was alluded to by
Cameron JA in Olitzki Property Holdings v State Tender Board 2001 (3)
SA 1247 (SCA) at para 12 where he said:
‘Where the legal duty the plaintiff invokes derives from breach of a statutory
provision, the jurisprudence of this Court has developed a supple test. The focal
question remains one of statutory interpretation, since the statute may on a proper
construction by implication itself confer a right of action, or alternatively provide the
basis for inferring that a legal duty exists at common law. The process in either case
requires a consideration of the statute as a whole, its objects and provisions, the
circumstances in which it was enacted, and the kind of mischief it was designed to
prevent.’

[16] On a proper reading of the Act there is nothing to suggest that a
failure to comply with its requirement would necessarily lead to liability.
On the facts of this case what makes it particularly problematic is that on
the available expert evidence it is not the failure to submit plans that

caused the balcony to collapse, but the manner in which it was fixed to
the wall. It is unnecessary to consider whether in other circumstances a
failure to submit plans for approval may ground a claim for damages. In
this case it cannot do so because there is no causal link between that
failure and the collapse of the balcony.

[17] As to the second ground of negligence advanced against Pienaar
and accepted by the court below, namely, that he caused the balcony to be
constructed without regard to its structural integrity, by insisting that the
vertical supports not be used in its construction, here again the point
breaks down in the light of the evidence presented in court. There was no
evidence that the vertical posts would have prevented the balcony from
collapsing when it pulled out of the wall from its fixings. Nor was this
proposition supported by Mr Ugo Giuseppe Rivera, a Structural Engineer
who testified as an expert witness at the trial. All that he was prepared to
say in that regard was that the posts ‘would have reduced the tension
force on the fixings which, in the end were the cause of failure.’ Even if it
is assumed however that pillars would have helped there is no evidence
that Pienaar had reason to think that their exclusion could be a source of
danger. Cantilevered balconies are a sufficiently common feature of
houses for a lay-person like Pienaar to believe ─ and correctly so ─ that a
suitably qualified person will erect it safely.

[18] It seems to me that Pienaar took all reasonable steps to ensure that
a proper balcony was designed, erected and installed. He contracted
Classen, a builder of some 20 years standing, whom he (and his life
partner De Bruin) believed had the necessary ability, integrity and
expertise to undertake the work. Classen came with the necessary
credentials, as being on the Absa Panel of Contractors, a group of

contractors shortlisted by a major bank to do alterations and additions for
their clients. Pienaar had no reason to think that Classen  or his corporate
entity would not perform the work in a professional or workmanlike
manner or would fail to appoint a similarly qualified person as a sub-
contractor.

[19] Pienaar could not do the work himself as he had no expertise to do
so. It cannot be said that he acted unreasonably. I consider him to have
complied with the third leg of the Langley Fox test and he is accordingly
not liable to the plaintiffs for the damages claimed.

[20] Turning to Classen, it must be borne in mind that from the outset
he disavowed any skill or expertise in the design, manufacture or
installation of a steel balcony. His mandate was limited to finding a
contractor who had the necessary expertise in that field. And so no
mandate was given to Classen to manufacture or erect the steel balcony.
The person who was to perform the work, Lamberts, was introduced to
Pienaar and De Bruin and on occasion they interacted with him directly.
Having regard to the evidence as a whole it is clear that the balcony
collapsed as a result of the negligent manner in which Lamberts fixed it
to the wall. At the last minute he used coach screws instead of the
intended rawl bolts and positioned them incorrectly.

[21] The first question is whether Classen can be held vicariously liable
for the negligence of Lamberts. The answer is no. As pointed out in
Langley Fox, the general rule of our law is that an employer is not
responsible for the negligence or the wrongdoing of an independent
contractor employed by him. (See Langley Fox at 8A-B.) I consider that

on the facts of this case Classen falls in the category of the aforesaid
employer and was not responsible for the negligence of Lamberts.

[22] This second question is whether any personal fault can be
attributed to Classen. The absence of vicarious liability does not mean
that there cannot be situations in which an employer, or principle
contractor, may be liable because of their own negligence. In the present
matter Classen would not escape liability if there was evidence
implicating him in negligence. In the present matter there is no such
evidence.

[23] It is true that he too is implicated in the failure to submit plans and
is perhaps more culpable than Pienaar. But for the reasons given in
relation to Pienaar this is not causally linked to the collapse of the
balcony and is therefore irrelevant.

[24] There was some suggestion that when he arrived at the scene
during the installation of the balcony he too asked Lamberts to remove
the vertical support posts by saying he should do what the client wishes.
As already indicated the vertical posts were not shown or alleged to be a
factor in the collapse of the balcony. I have already alluded to the fact
that Rivera was not even asked any questions about it. Of greater
importance is that Classen had no reason to believe that Lamberts had
fixed the balcony to the wall in an inadequate fashion.

[25] Classen had no means to prevent the collapse of the balcony. His
evidence was that when he arrived at the scene the balcony was already
installed. There is evidence that the head of the coach screws used to fix
it in place were the same in appearance as those of rawl bolts. That being

so, he had no means of telling that inadequate fastenings were used. Nor
had he any knowledge that they were wrongly positioned because they
had been inserted into plaster instead of brick. In my view no negligence
was proved against Classen and he should not have been found liable.

[26] In the result the following orders are made:
1.
The appeals are allowed.
2.
The first and second respondents are ordered to pay the appellants’
costs.
3.
The order of the court below is set aside and replaced with the
following:
‘1.
The first and second plaintiffs’ claims against the first, second and
third defendants are dismissed.
2.
The first and second plaintiffs are ordered to pay the costs of the
first, second and third defendants, jointly and severally the one paying the
other to be absolved.
3.
The fourth and fifth defendants are found to be liable jointly and
severally the one paying the other to be absolved for whatever damages
the first and second plaintiffs might prove for injuries sustained by them
as a result of the collapse of the balcony on 25 April 2004.
4.
The fourth and fifth defendants are ordered to pay the plaintiffs’
costs of suit, jointly and severally the one paying the other to be absolved,
including the qualifying expenses of the plaintiffs expert witness Mr U
Rivera and the costs of the application for absolution from the instance.’

____________________________
KK MTHIYANE

JUDGE OF APPEAL

NUGENT JA (concurring)

[27] Cases like this one bring to mind the game known as ‘pass the
parcel’. They arise when the responsibility for performing a task is passed
from hand to hand until ultimately it reaches the person or persons who
actually do the work, whether as employees or as independent
contractors. The question that can arise in such cases is who (if anyone)
bears liability (I am referring to direct liability and not liability that might
arise vicariously) if the performance (or failure to perform) the task
causes foreseeable harm to a third party? Unless one is to say that liability
always falls only upon the person or persons at the end of the line who
actually did the work it follows that somewhere along the line there might
be a party whose legal responsibility is not discharged by assigning the
work to someone else but only by ensuring that the work is properly
done. That is not a matter of jurisprudence but a matter of logic.

[28] That occurred in Chartaprops 16 (Pty) Ltd v Silberman.4 The task
of maintaining the cleanliness of the floors of a shopping mall was
assigned by the owner to a cleaning contractor who in turn assigned it to
employees who did the cleaning. The effect of the decision in that case
was that responsibility for the consequences of failing to maintain the
cleanliness of the floors passed from the owner to the contractor but there
it stopped. (Whether or not the cleaners were also vulnerable to liability
on one basis or another was not considered). Notwithstanding that an
ordinarily adequate system had been put in place the system was not
adhered to by one or other of the cleaners and on that basis the trial court

4 2009 (1) SA 265 (SCA).

found (this court confined itself to endorsing that finding5) that because
the employees ‘failed to take reasonable steps to detect and remove [the
hazard]’ the system was ‘not sufficiently adequate to detect and remove
spillages with reasonable promptitude’. Although not expressed in terms I
think it is evident that the court considered that a reasonable contractor
was required not merely to put in place an adequate system but also to
ensure that the work was indeed done.

[29] This case once again involves three parties. The owner (Mr
Pienaar) assigned work to a contractor (Mr Classen) who assigned it to a
sub-contractor (Mr Lamberts). All three knew (or at least ought to have
known) that harm could be caused to third parties if the work was not
properly done. The question before us is whether they (or either of them)
are liable for such harm when it occurred.

[30] The legal test to be applied when answering that question, as
pointed out by my colleague, is that set out in Langley Fox (which repeats
in substance the traditional test for negligence articulated in Kruger v
Coetzee6) and for present purposes we need concern ourselves only with
the third leg of that test.

[31] I agree with my colleague that no more could reasonably be
expected of Mr Pienaar, who had no expertise in the field, than to pass the
work on to an experienced building contractor, in the expectation that he
would pass it on to a person whom he considered to be an expert. As for
Mr Classen it was argued on behalf of the respondents – much along the
lines of the finding in relation to the contractor in Chartaprops – that his

5 Para 4.
6 1996 (2) SA 428 (A) at 430E-H.

responsibility did not stop with passing the work on to Mr Lamberts but
he was called upon also to ensure that it was properly done. Mr Classen
also had no expertise in this particular field and once more I do not think
that could reasonably be expected of a building contractor in that
position.

[32] Thus I agree with my colleague that neither Mr Pienaar nor Mr
Classen were shown to have been negligent and I concur in the order he
proposes.

______________________

RW NUGENT

JUDGE OF APPEAL

Appearances:

For 1st Appellant:

AG Sawma

Instructed by:
Shakenovksy-Nysschen c/o Fairbridges
Attorneys Cape Town

Lovius Block Attorneys Bloemfontein

For 2nd & 3rd Appellants:
JC Butler   SC

Instructed by:

Everinghams Attorneys Cape Town

Webbers Attorneys Bloemfontein

For 1st & 2nd Respondents:
PA Corbett

Instructed by:

Malcolm Lyons & Brivik Inc Cape Town

Matsepes Inc Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

1 December 2009

STATUS:
Immediate

PA Pienaar v RJ Brown (48/2009)[2009] ZASCA 165 (1 December 2009)

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal

The SCA today allowed appeals by a property owner, a building contractor and his
sub-contractor who were sued for damages in the Cape High Court, arising out of
injuries which Mr Russell Brown and Mr John Sloep of Netherlands sustained when
they were injured at the home of Mr Pieter Pienaar in Green Point, Cape Town on 25
April 2004, when the steel balcony on which they were standing collapsed.

They had attended a birthday party at the home of Mr Pienaar. While the guests,
including Mr Brown and Mr Sloep were gathered in the lounge on the top floor a car
alarm went off. Some of the guests (amongst whom were Brown and Sloep) went to
see what was happening. As they stepped or stood on the balcony it collapsed. Brown
and Sloep were seriously injured. Their claims for damages had succeeded in the
Cape High Court.

On appeal the SCA found that the house owner (Pienaar), the builder (Classen, of
Classen’s Home Improvements) had no reason to think that the sub-contractor, Mr
Lamberts of Ven Projects CC who was an expert in steel works, would not do the
work in an efficient and workmanlike manner. It was found that the claimants, Brown
and Sloep, had been injured as a result of the negligent conduct of the sub-contractor,
Mr Lamberts and his corporate entity, Ven Projects CC.

It was found that the balcony had not been properly fixed to the wall but had been
attached to it by couch screws instead of rawl bolts.

The sub-contractor Lamberts and his company had not appealed the decision in which
they were found by the high court to be liable for the damages suffered by Mr Brown
and Mr Sloep.