The Civil Engineering Contractor March 2019 | Page 39

THOUGHT LEADERS harm to one of these parties, they would have a right to claim such damages in delict, from the principal agent. The courts did however find it to be unnecessarily burdensome on principal agents to expose them directly to delictual claims where contractors already have other adequate legal redress, as I’ll explain below: Our courts applied a ‘balancing of identifiable norms’ in this instance and refrained from opening the door to multiple claims from contractors and subcontractors directly. However, the delictual liability and claimability of losses from delict is still possible in certain cases, and professionals should not think it is impossible for such a claim to succeed in future. In this particular instance, the court felt that there is sufficient contractual recourse for both contractors and subcontractors in terms of the indemnity clause of the JBCC. In essence, the clause states in versions 4.1, 5.0, and 6.1 that the employer shall indemnify the contractor against any harm or losses suffered as a result of an action by the employer or one of his/her agents. A contractor suffering loss as a result of an action by a principal agent would be able to claim this from the employer. The employer, in turn, would be able to hold the principal agent liable, contractually or in delict. It is therefore imperative for any professional agent on a JBCC contract to understand this crucial important duty of impartiality. Although contractors or subcontractors would not readily be able to lodge direct delictual claims, they have recourse through the contract to claim for losses caused by the prejudicial actions of an agent. That action automatically opens the door for claims against the professional by the employer. So, no comfort or space for manoeuvring. I am continuously stunned by the shenanigans of some principal agents and other agents on projects we are engaged on as consultants. Many of them routinely, and unashamedly, partake in blatant acts of partiality in terms of their duties. As professionals, it is our duty to remind our employers of this principle when they request you to reduce a certificate’s value, or ask you not to include default interest on late payments, or ask you to deliberately cut the extension of time claim of a contractor. “Yes, but the employer will fire me from the project and not use my services again,” I hear many people protest. Let’s get clear on this, you have two choices: (a) you are either professional and impartial; or (b) you are cheating someone else and liable for the losses suffered by them as a result. Our industry and specifically the JBCC contract rely on the principle of fairness and of a facilitator who is impartial. If this breaks down, we compromise the integrity of the contract and harm our industry. nn CEC March 2019 | 37 Last must-read section About the author Kobus le Roux is a professional project manager, planning professional, and construction contracts expert. He is the founder of Le Roux Consulting, a boutique consultancy that helps contractors plan and track their project’s progress, assists them with contractual claims and disputes, and facilitates impactful training workshops. He is a qualified construction project manager (UP) with an MBA (UFS) and specialised accreditation through the Project Management Institute (PMI) as a Scheduling Professional. His continuing experience in the standard forms of construction contract and commercial claims sees him assisting numerous project teams and companies with complex, construction-related disputes and claims. He routinely acts as a forensic expert in delay analysis and he is a leading contributor of commercially related articles that seek to clarify the complexities of construction contracts in order to help contractors, subcontractors, and professionals to apply the principles of construction contracts in their everyday lives. If you have any specific questions, comments, or unique circumstances that you would like clarity on, feel free to send it to [email protected].