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].