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JORTHAM MASEKO v THE ATTORNEY-GENERAL [2000] SZHC 6 (12 April 2000)

Breach of statutory duty and negligence






CASE NO.3018/99

In the matter between:

JORTHAM MASEKO Plaintiff


AND


THE ATTORNEY-GENERAL Defendant


CORAM : MASUKU J.


For Plaintiff : MR T.R. MASEKO
For Defendant : MR P. MSIBI

RULING ON EXCEPTION
12/4/2000

By a combined Summons dated 14^th December, 1999, the Plaintiff sued the Defendant for damages in the amount of E 86,000.00, interest thereon and costs. The damages are alleged to have been due to a collision between the Plaintiff’s motor vehicle and another vehicle attributes the cause of the accident to bad workmanship by Akwandze Contractors (Pty) limited, a firm engaged by the Defendant to construct the Mahlanya – Malkerns public road, in terms of the provisions of Section 11 of The Roads and Outspan Act No.40 of 1931. It is alleged that the Contractor failed to use proper materials in upgrading the road and also failed to exercise due care and skill in carrying out its contractual duties.

The Defendant excepted to the Plaintiff’s Particulars of Claim on three grounds:-

Public Works and Transport in engaging the services of Akwandze Contractors.
The Defendant contends that the Plaintiff failed to make allegations which show that the Minister should have foreseen a reasonable possibility of the award of the contract to Akwandze occasioning injury to the Plaintiff and thus causing him to suffer patrimonial loss.

Minister’s award of the tender to Akwandze Contractors and the accident. The
Defendant alleges that the proper Defendant should have been the contractor.

negligent. The Plaintiff failed to establish all the elements of negligence against the Minister especially in view of the allegations in the particular of claim that the negligence is actually attributable to the Contractor.

The first two grounds are based on a misconception of the Plaintiff’s Particulars of Claim. A proper reading of the Plaintiff’s Particulars of Claim shows that the Plaintiff’s contention is not that the Minister acted negligently in awarding the contract to Akwandze Contractors. Rather, the Plaintiff alleges that Akwandze Contractors, having been awarded the tender carried out is duties in a negligent manner in that it used inappropriate material in upgrading the road and also failed to exercise due care and skill in performing its duties. For that reason, the first two grounds are ill-conceived and must fail.

On the third ground, the Defendant’s representative argued that there was no causal nexus between the Ministry’s action and the resultant accident, the Plaintiff contenting itself in relying on the condictio sime qua non test which is insufficient in law to confer liability on the Defendant for the omissions of the Contractor. The Defendant further contended that the damage occasioned to the Plaintiff’s motor vehicle was too remote to be guarded against by the Defendant. In this regard the Court was referred to the case of MINISTER OF POLICE vs SKOSANA 1977 (1) SA 31 (A).

In paragraph 7 of his Particulars of Claim, the Plaintiff avers the following:-

“The aforesaid damage was occasioned by the said Minister of Works and Power and Communications (which is by the way defunct) in that he engaged the said contractor who upgraded the said road in a negligent manner in that (sic) failed to use proper materials for the upgrading of the road and also failed to exercise due care and skill in the carrying out of its contractual duties.”

It is my considered view that from the contents of the foregoing paragraph which seeks to establish the Defendant’s liability, no nexus is created by the Plaintiff from which it can be held that the Defendant is liable for the negligence of the contractor. The negligence alleged is attributed solely to the contractor without any mention of how the Defendant caused the damage which resulted from negligence attributed to the contractor. At this stage, the Court is dealing with the sufficiency of the allegations made and not the quality of the evidence.

I am also of the view that the exception should upheld for other reasons as well. There is no allegation in the Particulars of Claim indicating that the said collision occurred on the Mahlanya – Malkerns road which the Minister was under a duty to maintain. Furthermore, there is no allegation that the collision resulted from bad workmanship by the contractor and if so in what respects the alleged bad workmanship resulted in the Plaintiff suffering the patrimonial loss that he now claims.

Mr Maseko argued that there was no need for the Plaintiff to allege negligence by the Defendant since the Defendant, in engaging the services of Akwandze Contractors acted in terms of the provisions of Section 11 of the Roads and Outspans Act (supra). Mr Maseko contended that the Defendant breached the statutory duty imposed upon it by Section 11 and that is evidence of the Defendant’s negligence.

In support of this proposition, the Court was referred to Mckerron R.G. “The Law of Delict,” Juta Co., 7^th Edition, 1971 at page 283 – 284, where the learned author states as follows:-

“Although the breach of a statutory duty may not by itself give a cause of action, it
may nevertheless in a suitable case be relied upon as evidence of negligence in an
action founded upon negligence. Breach of a statutory duty may, of course, have
nothing to do with negligence, but where a statute requires certain precautions to
be taken for the safety of others, the failure to take such precautions may be relied
upon as evidence of negligence by any person who alleges that he has been injured
in consequence thereof.”

Section 11 on which the Plaintiff relies read as follows:-

“The Minister may, and it shall be his duty to make and maintain, so far as the
funds at his disposal for the purpose permit, all public roads, either departmentally
or through contractors, as may appear best or expedient.”

It is my view that this Act does not require the Minister to take any precautions in the sense envisaged by McKerron above. It only imposes a duty on the Minister to, ‘so far as the funds at his disposal permit’ make and maintain all public roads. No precautions that he should take are explicit in the legislation. The excerpt from McKerron does not assist the Plaintiff in view of the foregoing.

Should I be wrong in this regard, it is my view that the liability of the Minister based on the provisions of Section 11 of the Act should have been expressly alleged in the Particulars of Claim but this was not done. As far as the Particulars of Claim stand, no allegations on how and why the Minister is to be held liable for the actions or omissions of Akwandze Contractors have been made.

The Defendant’s exception be and hereby is upheld with costs so far as it relates to the last ground. The Plaintiff be and is hereby granted leave to amend his Particulars of Claim within fourteen (14) days from the date of this ruling.




T.S. MASUKU
JUDGE