THE HIGH COURT OF SWAZILAND
the matter between:
Plaintiff: MR T.R. MASEKO
Defendant: MR P. MSIBI
combined Summons dated 14th December, 1999, the Plaintiff sued the
Defendant for damages in the amount of E 86,000.00, interest thereon
and costs. The damages are alleged to have been due to a collision
between the Plaintiff's motor vehicle and another vehicle. The
Plaintiff attributes the cause of the accident to bad workmanship by
Akwandze Contractors (Pty) Limited, a firm engaged by the Defendant
to construct the Mahlanya -Malkerns public road, in terms of the
provisions of Section 11 of The Roads and Outspan Act No.40 of 1931.
It is alleged that the Contractor failed to use proper materials in
upgrading the road and also failed to exercise due care and skill in
carrying out its contractual duties.
Defendant excepted to the Plaintiff's Particulars of Claim on three
the Plaintiff alleges that the collision was occasioned by the
Works and Transport in engaging the services of Akwandze Contractors.
The Defendant contends that the Plaintiff failed to make allegations
which show that the Minister should have foreseen a reasonable
possibility of the award of the contract to Akwandze occasioning
injury to the Plaintiff and thus causing him to suffer patrimonial
is no causal nexus shown in the said Particulars of Claim between the
Minister's award of the tender to Akwandze Contractors and the
accident. The -Defendant alleges that the proper Defendant should
have been the contractor.
is no allegation that the action of the Minister was either unlawful
or negligent. The Plaintiff failed to establish all the elements of
negligence against the Minister especially in view of the allegations
in the particular of claim that the negligence is actually
attributable to the Contractor.
first two grounds are based on a misconception of the Plaintiff's
Particulars of Claim. A proper reading of the Plaintiff's Particulars
of Claim shows that the Plaintiff's contention is not that the
Minister acted negligently in awarding the contract to Akwandze
Contractors. Rather, the Plaintiff alleges that Akwandze Contractors,
having been awarded the tender carried out is duties in a negligent
manner in that it used inappropriate material in upgrading the road
and also failed to exercise due care and skill in performing its
duties. For that reason, the first two grounds are ill-conceived and
the third ground, the Defendant's representative argued that there
was no causal nexus between the Ministry's action and the resultant
accident, the Plaintiff contenting itself in relying on the condictio
sime qua non test which is insufficient in law to confer liability on
the Defendant for the omissions of the Contractor. The Defendant
further contended that the damage occasioned to the Plaintiff's motor
vehicle was too remote to be guarded against by the Defendant. In
this regard the Court was referred to the case of MINISTER OF POLICE
vs SKOSANA 1977 (1) SA 31 (A).
paragraph 7 of his Particulars of Claim, the Plaintiff avers the
aforesaid damage was occasioned by the said Minister of Works and
Power and Communications (which is by the way defunct) in that he
engaged the said contractor who upgraded the said road in a negligent
manner in that (sic) failed to use proper materials for the upgrading
of the road and also failed to exercise due care and skill in the
carrying out of its contractual duties. "
is my considered view that from the contents of the foregoing
paragraph which seek to establish the Defendant's liability, no nexus
is created by the Plaintiff from which it can beheld that the
Defendant is liable for the negligence of the contractor. The
negligence alleged is attributed solely to the contractor without any
mention of how the Defendant caused the damage which resulted from
negligence attributed to the contractor. At this stage, the Court is
dealing with the sufficiency of the allegations made and not the
quality of the evidence.
also of the view that the exception should upheld for other reasons
as well. There is no allegation in the Particulars of Claim
indicating that the said collision occurred on the Mahlanya -
Malkerns road which the Minister was under a duty to maintain.
Furthermore, there is no allegation that the collision resulted from
bad workmanship by the contractor and if so in what respects the
alleged bad workmanship resulted in the Plaintiff suffering the
patrimonial loss that he now claims.
Maseko argued that there was no need for the Plaintiff to allege
negligence by the Defendant since the Defendant, in engaging the
services of Akwandze Contractors acted in terms of the provisions of
Section 11 of the Roads and Outspans Act (supra). Mr Maseko contended
that the Defendant breached the statutory duty imposed upon it by
Section 11 and that is evidence of the Defendant's negligence.
support of this proposition, the Court was referred to Mckerron R.G.
"The Law of Delict," Juta Co., 7th Edition, 1971 at page
283 - 284, where the learned author states as follows:-
the breach of a statutory duty may not by itself give a cause of
action, it may nevertheless in a suitable case be relied upon as
evidence of negligence in an action founded upon negligence.
of a statutory duty may, of course, have
to do with negligence, but where a statute requires certain
precautions to be taken for the safety of others, the failure to take
such precautions may be relied upon as evidence of negligence by any
person who alleges that he has been injured in consequence thereof. "
11 on which the Plaintiff relies reads as follows:-
Minister may, and it shall be his duty to make and maintain, so far
as the funds at his disposal for the purpose permit, all public
roads, either departmentally or through contractors, as may appear
best or expedient. "
is ray view that this Act does not require the Minister to take any
precautions in the sense envisaged by McKerron above. It only imposes
a duty on the Minister to, 'so far as the funds at his disposal
permit' make and maintain all public roads. No precautions that he
should take are explicit in the legislation. The excerpt from
McKerron does not assist the Plaintiff in view of the foregoing.
I be wrong in this regard, it is my view that the liability of the
Minister based on the provisions of Section 11 of the Act should have
been expressly alleged in the Particulars of Claim but this was not
done. As far as the Particulars of Claim stand, no allegations on how
and why the Minister is to be held liable for the actions or
omissions of Akwandze Contractors have been made.
Defendant's exception be and hereby is upheld with costs so far as it
relates to the last ground.
Plaintiff be and is hereby granted leave to amend his Particulars of
Claim within fourteen (14) days from the date of this ruling.