Delictual and contractual liability of contractors and engineers in the South African construction industry

Abstract

The delictual and contractual liability of contractors and engineers for negligence in the construction industry in South Africa is critically investigated. In most instances of such harm-producing conduct of contractors and engineers, the application of common law principles results in equitable outcomes. Some instances are identified where the application of fault-based delictual principles fails to fully vindicate the interests of prejudiced parties. The legislative adoption of strict liability is considered as a potential solution. Section 61 of the Consumer Protection Act 68 of 2008 has introduced strict liability for a wide range of damage caused by goods, which appears to be defined sufficiently widely to include strict liability of contractors and engineers for harm-producing conduct in the construction industry. On the assumption that progressive application by the Courts of Section 61 will satisfactorily supplement common law principles, no further legislative reform in this field is recommended.