Skip to content

An Overview of Construction Law

Overview of Construction Law | AGORA AFRICA
By: Oostewald van Niekerk

Posted on: 22 November 2021

Construction law is an interactive subject in which both lawyers and construction professionals, such as Quantity Surveyors, Project Managers, Architects, Engineers and Principal Agents have an essential role to play. Construction Law start with Common Law, where common law is that element of the legal system that does not originate from legislation, the lay person can define it as the traditions, principles, decisions, and processes which was introduced and accepted by the Courts as being legally correct and binding on all citizens. Common Law can further be defined as the decisions made by the courts on facts that are brought before them. Not all the diverse types of disputes or issues exists within the law, nor stipulated individually within the law; thus, our Courts interpret the existing legislation and apply its interpretation of the law to the applicable facts. Through this process new laws or rules come into existence called the ‘doctrine of stare decisis’.  The ‘rule of stare decisis’ literally means to stand by previous decisions. The implication of ‘stare decisis’ means that the decision of a Higher Court within the same jurisdiction is binding on a Lower Court within that same jurisdiction. To understand Construction Law, one must understand the two sections of Law in South Africa, Namely Public Law vs Private Law. Public law is that part of South African law which deals with the state and its powers. Private law governs the rights and obligations between individuals, which may include a business, company, or other form of organization. It is within the parameters of Private law where Construction Law falls. Private law can also be referred to, as civil law. Civil Law is further categorized into the following sections:
  • Law of Persons.
  • Law of Property.
  • Law of Obligations.
  • Law of Succession.
  • Mercantile Law.
From theory the construction law mainly falls under law of obligations with the following two sections:
  • Law of contract.
  • Law of delict.
A delict is a civil wrong. Examples of delict includes negligence, nuisance, libel, slander, trespass, assault, and battery. Negligence is an important delict this is a breach of a legal duty to take care, which results in damage to the claimant. To establish negligence the claimant must prove three things:
  • The defendant owes the claimant a duty of care
  • The defendant has acted in breach of that duty
  • As a result, the claimant has suffered damages
As professionals in the building environment, we clearly have a duty of care towards our clients and thus negligence becomes an important delict. Another delict that has bearing on the construction industry is called Vicarious liability. This roughly means the liability for the delict of others. In the construction industry this may arise in two ways:
  • The employer may be liable for the delict of the contractor like employing an incompetent contractor, or for failing to give adequate directions to avoid damage to another.
  • Any of the parties involved in the work may be liable for the delict of their employees.
It is therefore important that not only contractors but also the consultants have the correct insurances in place. This is the reason that we have contracts like the JBCC contract suite which governs the relationship between the client and the contractor, and the relationship between the contractor and sub-contractors, as well as the PROCSA suite that governs the relationship between the client and the consultants. The difference between delict and contracts is that contractual remedies seek to place the claimant in the position that he or she would have been in had the contract been performed accurately, and where delict is concerned with compensating the victim who has suffered injury resulting from conduct classified as a civil wrong by law. The difference between contract and delict can be determined by asking the question “Have the rules of contract law been complied with?” If the answer is “No”, the wrong in question cannot be classified as contractual wrongdoing but may be classified as tortuous. The remedy claimed in most delict actions is damages. Construction professionals mostly deal with construction contracts derived from construction law and leave the ‘law’ to be dealt with by legal practitioners. The various construction professionals have different governing bodies which regulates the industry. Professionals must register and maintain good standing by understanding and adhering to regulations, laws, and ethics. Having a clear understanding of the Construction Law is expected and therefore incorporated into the academic requirements of these bodies or councils. As a result, this law is made available by, and forms integral part of the registration and monitoring process of these bodies. The full Construction law can be access via various sites, amongst others: SACQSP Society of Construction Law of SA CIDB