An Overview of Construction Law
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.
- Law of contract.
- Law of delict.
- 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
- 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.