THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

CASE NO: 300/07

CHARTAPROPS 16 (PTY) LTD
First Appellant

ADVANCED CLEANING SERVICES CC
Second Appellant

and

MICHELLE SILBERMAN
Respondent

Neutral citation:
Chartaprops 16 v Silberman (300/07) [2008] ZASCA 115
(25 September 2008)

Coram:
SCOTT, NUGENT, PONNAN and MAYA JJA and LEACH AJA
Heard:
14 MAY 2008
Delivered:   25 SEPTEMBER 2008
Summary:
Delict – hazard in shopping mall – liability for acts of

independent contractor.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: High Court, Johannesburg (Boruchowitz J sitting as court of first
instance)

In the result:

The appeal of the first appellant is upheld with costs.

The appeal of the second appellant is dismissed with costs.
The order of the court below is set aside and the following is
substituted in its stead:
‘(a)
The claim against the first defendant is dismissed with costs.
(b)
It is declared that the second defendant is liable to the
plaintiff for such damages as might be agreed upon or
proved in consequence of the event that is the subject of this
claim.

(c)
The second defendant is ordered to pay the plaintiff’s costs.’

________________________________________________________________

J U D G M E N T
________________________________________________________________

NUGENT JA

[1] The respondent in this appeal – Mrs Silberman – visited a shopping mall
in Johannesburg. In one of the passageways of the mall was a pool of slippery
substance – what the substance was has not been established – that had been
spilt on the floor. Oblivious to its presence Mrs Silberman slipped on the
substance and was injured. The shopping mall was owned by and under the
control of the first appellant – Chartaprops – which had contracted with the

second appellant – Advanced Cleaning – to keep the floors of the shopping mall
clean. Mrs Silberman sued both appellants in the High Court at Johannesburg for
the recovery of her damages. The action was tried by Boruchuwitz J who held
both appellants jointly and severally liable (the amount of the damages has yet to
be determined) but granted them leave to appeal to this court.

[2] Precisely how the substance came to be on the floor has not been
established. It is possible that it was spilt by one of the cleaners but it might just
as well have been spilt by a member of the public. The complaint against the
appellants is not that they – or those for whose conduct they are legally
responsible – created the hazard. The complaint is that they or their employees
negligently omitted to detect and remove the hazard and that the respondents
are liable for the consequences of the omission.

[3] Advanced Cleaning had a system in place for cleaning the floors the
details of which are not important. It is sufficient to say that every part of the floor
should ordinarily have been passed over by one or other of the cleaners in the
employ of Advanced Cleaning at intervals of no more than five minutes. I think it
is clear that the system, if it was adhered to, was adequate to keep the floors in a
reasonably safe condition. It is also not disputed that Chartaprops itself kept a
regular check on the contractor’s performance. Its centre manager consulted
each morning with the cleaning supervisor and personally inspected the floors of
the shopping mall daily to ensure that they had been properly cleaned. If he
encountered litter or a spillage he would arrange for its immediate removal.

[4] But even the best systems sometimes fail. The learned judge in the court
below found that the spillage had been on the floor for thirty minutes or more at
the time it was encountered by Mrs Silberman. He said that that was ‘a
sufficiently lengthy period so as to constitute a hazard to members of the public
and to the plaintiff in particular’, that ‘the employees of [Advanced Cleaning]
failed to take reasonable steps to detect and remove [the hazard]’, and that the

cleaning system was accordingly ‘not sufficiently adequate to detect and remove
spillages with reasonable promptitude.’ On that basis he concluded that
Advanced Cleaning was negligent and was liable to Mrs Silberman for her
damages and that Chartaprops was vicariously liable for the negligence of
Advanced Cleaning.

[5] The factual finding by the court below that the substance had been on the
floor for thirty minutes or more at the time the incident occurred – a finding upon
which the further conclusions was built – was placed in issue before us but I see
no proper grounds to disturb that factual finding. The real questions that arise in
this appeal relate rather to the consequences of that finding.

[6] The liability of Chartaprops was held to have arisen vicariously for what
was said to be negligence on the part of Advanced Cleaning and in that respect I
think the court below was incorrect. Where liability arises vicariously it is because
the defendant and the wrongdoer stand in a particular relationship to one
another. Various explanations have been offered for the existence of the rule that
creates liability merely on account of the existence of that relationship – usefully
collected by Hartmut Wicke in his thesis entitled Vicarious Liability in Modern
South African Law.1 While none provides a completely satisfactory explanation
for the existence of the rule it is nonetheless firmly embedded in our law. It is also
well established that the relationships to which the rule applies do not include the
relationship with an independent contractor. That appears from the decision of
this court in Colonial Mutual Life Assurance Society Ltd v MacDonald,2 which has
been consistently followed, accurately reflected in the headnote as follows:
‘A principal is liable for the acts of his agent where the agent is a servant but not where
the agent is a contractor, sub-contractor or the servant of a contractor or sub-contractor.’

1 Thesis presented in partial fulfillment of the requirements for a Master of Law degree at the
University of Stellenbosch under the supervision of Professor M M  Loubser in February 1997.
2 1931 AD 412.

[7] A defendant might nonetheless be liable for harm that arises from
negligent conduct on the part of an independent contractor but where that occurs
the liability does not arise vicariously. It arises instead from the breach of the
defendant’s own duty (I use that term to mean the obligation that arises when the
reasonable possibility of injury ought to be foreseen in accordance with the
classic test for negligence articulated in Kruger v Coetzee3). It will arise where
that duty that is cast upon the defendant to take steps to guard against harm is
one that is capable of being discharged only if the steps that are required to
guard against the harm are actually taken. The duty that is cast upon a defendant
in those circumstances has been described (in the context of English law) as a
duty that is not capable of being delegated: ‘the performance of the duties, but
not the responsibility for that performance, can be delegated to another’.4 Or as it
has been expressed on another occasion it is “a duty not merely to take care, but
a duty to provide that care is taken” so that if care is not taken the duty is
breached’.5

[8] One such case was Tarry v Ashton,6 in which a lamp that the defendant
had employed an independent contractor to repair was not securely fastened to
the wall of the defendant’s house and fell on a passer-by. Finding the defendant
to be liable Lord Blackman said the following:
‘But it was the defendant’s duty to make the lamp reasonably safe, the contractor failed
to do that; and the defendant, having the duty, has trusted fulfillment of that duty to
another who has not done it. Therefore the defendant has not done his duty, and he is
liable to the plaintiff for the consequences.’
Another was Hardaker v Idle District Council,7 in which Lindley LJ described the
nature of the duty that was cast upon the council as follows:

3 1966 (2) SA 428 (A) 430E-H.
4 Salmond and Heuston on the Law of Torts 19th ed at 544-5, cited with approval by this court in
Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 (1) SA 1 (A) 8F-H.
5 Clerk and Lindsell on Torts 19 ed para 6-53, citing Langton J in The Pass of Ballater [1942]
p 112 at 117.
6 1876 1 QBD 314 at 319.
7 1896 1 QBD 335 at 340.

‘But the council cannot, by employing a contractor, get rid of their own duty to other
people, whatever that duty may be. If their contractor performs their duty for them, it is
performed by them through him, and they are not responsible for anything more. They
are not responsible for his negligence in other respects, as they would be if he were their
servant. Such negligence is sometimes called casual or collateral negligence. If, on the
other hand, their contractor fails to do what it is their duty to do or get done, their duty is
not performed, and they are responsible accordingly.’

[9] That a duty that is cast upon a defendant might be such that it is
discharged only if reasonable precautions to avoid the harm are actually taken –
and that the defendant who appoints another to take those steps fails to do will
be liable for the failure – was held by this court in Dukes v Marthinusen8 to be
consistent with principles of our law of delictual liability. In that case the
defendant employed an independent contractor to demolish certain buildings. In
a claim for damages arising from the negligent performance of the work Stratford
ACJ said the following after considering various cases in this country and in
England including the statements of Lord Blackman and Lindley LJ that I have
referred to:
‘The English law on the subject as I have stated it to be is in complete accord with our
own, both systems rest the rule as to the liability of an employer for any damage caused
by work he authorises another to do upon the law of negligence. … It follows from the
law as I have stated it to be that the first and crucial question in this case is to ascertain
on the facts of the case whether there was a duty on the employer who authorised the
demolition of these buildings to take precautions to protect the public using the highway
from possible injury. If there was such duty it could not be delegated and the
employment of an independent contractor is an irrelevant consideration.’9

[10] In Langley Fox Building Partnership (Pty) Ltd v De Valence10 this court
once more affirmed that the employer of an independent contractor might
become liable in that way, though it was careful to emphasise that Stratford ACJ

8 1937 AD 12 at 18.
9 At p 23.
10 1991 (1) SA 1 (A).

did not purport to say that ‘there might be liability as an invariable rule whenever
the work entails danger to the public’. Goldstone AJA said in that case that ‘the
correct approach to the liability of an employer for the negligence of an
independent contractor is to apply the fundamental rule that obliges a person to
exercise that degree of care which the circumstances demand’.

[11] Langley Fox was another case in which the defendant employed an
independent contractor to do work on its behalf. The majority held that the
defendant should have realized that the work was inherently dangerous and was
under a duty to take reasonable steps to guard against the danger. I think it is
clear from the following passage that the majority considered that duty to require
the defendant to ensure that adequate precautions were taken (and it held the
defendant liable because they were not taken):
‘Whether such precautions were to be taken by the [defendant] or the contractor, as
between them, is a matter depending on their contract. As far as the duty to the public in
general and the [plaintiff] in particular is concerned it matters not. That duty rested upon
the {defendant}.’11

[12] What emerges from those cases is that the basis upon which liability
arises for the conduct of an independent contractor is no more than an
application of ordinary principles of delictual liability. The liability of the employer
rests upon his or her own failure to take reasonable steps to guard against the
harm. And as Holmes JA emphasized in Kruger v Coetzee,12 when articulating
the classic test for negligence: ‘what steps would be reasonable must always
depend upon the circumstances of the particular case’. In some cases it will be
reasonable to expect the defendant only to take reasonable precautions to
prevent the harm. But in other cases it will be reasonable to expect the defendant
to ensure that those precautions are taken (whether by himself or herself or by
someone else). It is where that higher standard is called for that the duty of the

11 At p 14.
12 1966 (2) SA 428 (A) 430E-H.

defendant is said to be ‘non-delegable’ and is discharged only if the precautions
are indeed taken.

[13] The following passage from the decision of the High Court of Australia in
Burnie Port Authority v General Jones (Pty) Ltd13 seems to me to reflect the
approach that our law also takes to the matter:
‘It has long been recognized that there are certain categories of case in which a duty to
take reasonable care to avoid a foreseeable risk of injury to another will not be
discharged merely by the employment of a qualified and ostensibly competent
independent contractor. In those categories of case, the nature of the relationship of
proximity gives rise to a duty of care of a special and "more stringent" kind, namely a
"duty to ensure that reasonable care is taken" (See Kondis v State Transport Authority
(1984) 154 CLR 672 at 686.). Put differently, the requirement of reasonable care in
those categories of case extends to seeing that care is taken. One of the classic
statements of the scope of such a duty of care remains that of Lord Blackburn in Hughes
v Percival (1883) 8 App Case 443 at 446.):
"that duty went as far as to require (the defendant) to see that reasonable skill and care
were exercised in those operations … If such a duty was cast upon the defendant he
could not get rid of responsibility by delegating the performance of it to a third person.
He was at liberty to employ such a third person to fulfil the duty which the law cast on
himself ... but the defendant still remained subject to that duty, and liable for the
consequences if it was not fulfilled."’
After referring to various categories of case in which a duty of that kind was said
to have arisen in cases before the courts in that country the court went on to say
the following:
‘In most, though conceivably not all, of such categories of case, the common "element in
the relationship between the parties which generates (the) special responsibility or duty
to see that care is taken" is that "the person on whom (the duty) is imposed has
undertaken the care, supervision or control of the person or property of another or is so
placed in relation to that person or his property as to assume a particular responsibility
for his or its safety, in circumstances where the person affected might reasonably expect
that due care will be exercised" (Kondis v State Transport Authority (1984) 154 CLR at

13 (1994) 179 CLR 520 at 550.

687; see, also, Stevens v Brodribb Sawmilling Co. Pty. Ltd (1986) 160 CLR at 31, 44-
46.) … Viewed from the perspective of the person to whom the duty is owed, the
relationship of proximity giving rise to the non-delegable duty of care in such cases is
marked by special dependence or vulnerability on the part of that person (The
Commonwealth b. Introvigne (1982) 150 CLR 258 at 271 per Mason J).’

[14] There will no doubt be cases – particularly where special skill is required
for precautions to be taken – where no more is required of a reasonable person
but to appoint a competent person to guard against the harm. As Van Wyk J said
in Rhodes Fruit Farms Ltd v Cape Town City Council,14 in a passage that was
cited with approval in Langley Fox:
‘It is the duty of the employer to take such precautions as a reasonable person would
take in the circumstances. I do not, however, consider Dukes’ case as an authority for
the proposition that the employment of a skilled independent contractor, where the
extent of the danger and the reasonably practical measures to minimise it can only be
determined by such skilled person, cannot in any circumstances constitute a discharge
of the employer’s aforesaid duty. … There may well be situations in which a reasonable
person would rely solely on an independent skilled contractor to take all reasonable
precautions to eliminate or minimize damage to another, and in such circumstances it
could not be said that he was negligent if such contractor fails to act reasonably. In my
opinion, therefore, the duty to take care where the work undertaken is per se dangerous
could in some cases be discharged by delegating its performance to an expert.’
But there are other cases, as I hope that I have made clear, in which a
reasonable person in the position of the defendant is expected to ensure that
reasonable precautions are taken to avoid harm. The defendant is free in those
cases to appoint someone else to take those precautions but that by itself will not
discharge the defendant’s duty. As pointed out in the passages from Langley Fox
and Kruger v Coetzee to which I referred earlier that the standard of care that is
required of the defendant will be determined by the circumstances of the
particular case.

14 1968 (3) SA 514 (C) at 519.

[15] But negligence alone is not sufficient to give rise to liability for an
omission: the omission must be wrongful as well. In Trustees, Two Oceans
Aquarium Trust v Kantey & Templer (Pty) Ltd15 Brand JA pointed out that
‘[w]hen we say that a particular omission…is “wrongful”, we mean that public or legal
policy considerations require that such conduct, if negligent, is actionable; that legal
liability for the resulting damages should follow. Conversely, when we say that negligent
conduct…consisting of an omission is not wrongful, we intend to convey that public or
legal policy considerations determine that there should be no liability; that the potential
defendant should not be subjected to a claim for damages, his or her negligence
notwithstanding. In such event, the question of fault does not even arise. The defendant
enjoys immunity against liability for such conduct, whether negligent or not.’

[16] It can be taken to be settled that an action lies against a shopkeeper for
negligently omitting to clear hazards from the shop floor16 and I think that applies
as much to a person in control of a shopping mall in respect of the floors that are
under its control. Indeed, that was admitted by Chartaprops in its plea. Moreover
a reasonable person in control of a shopping mall would clearly foresee that
spillages might occur in the passages and cause harm if they are permitted to
remain, and would take reasonable steps to guard against harm occurring
(Kruger v Coetzee).17 While acknowledging its duty to take reasonable steps to
avoid the harm it was argued on behalf of Chartaprops that it was a sufficient
discharge of that duty that it appointed an apparently competent cleaning service
to keep the floors of the mall clean and checked on its performance from time to
time. I do not think that is correct.

[17] There can be no exhaustive test for determining when a person is
expected not merely to take reasonable precautions against harm but instead to
ensure that such precautions are taken for as Goldstone AJA emphasised in

15 2006 (3) SA 138 (SCA) para 12.
16 Alberts v Engelbrecht 1961 (2) SA 644 (T); Probst v Pick ‘n Pay Retailers (Pty) Ltd [1998] 2 All
SA 186 (W); Monteoli v Woolworths (Pty) Ltd 2000 (4) SA 735 (W); Brauns v Shoprite Checkers
(Pty) Ltd 2004 (6) SA 211 (E).
17 Cited above.

Langley Fox that is necessarily bound up with the particular facts. But the High
Court of Australia in Burnie Port Authority identified one feature that was
common to the cases in which that higher duty has been held to exist, which is
that the relationship between the plaintiff and the defendant was ‘marked by
special dependence or vulnerability on the part of [the defendant]’.  The court
went on to say that a person is in such a relationship of ‘special dependence or
vulnerability’ when he or she
‘is specially vulnerable to danger if reasonable precautions are not taken in relation to
what is done on the premises. He or she is specially dependent upon the person in
control of the premises to ensure that such reasonable precautions are in fact taken.
Commonly, he or she will have neither the right nor the opportunity to exercise control
over, or even to have foreknowledge of, what is done or allowed by the other party within
the premises.’18

[18] In a case like this one the parties stand in such relationship to one another
and in my view it indeed calls for the higher standard of care that I have referred
to. A person who invites the public to frequent a shopping mall will be expected
by members of the public to have ensured that the floors of the premises are
reasonably safe and will expect to look to that person if they are not. They are
not ordinarily able to make their own assessment of the performance of the
cleaners who might have been appointed to the task and, unlike the person in
control of the premises they are also not ordinarily able to determine where the
fault for any failure of the cleaning system lies and who is responsible for that
occurring. In short, they are entirely reliant upon the person in control of the
premises to ensure that reasonable precautions are taken to keep the floor safe.
It seems to me in the circumstances that it is reasonable to expect that a person
in control of a shopping mall to ensure that reasonable precautions are taken to
keep the floors safe and is liable if those precautions are not taken by a person
who he or she has appointed to do so. That is how the duty was described in

18 At p 551.

comparable circumstances in Probst v Pick ‘n Pay Retailers (Pty) Ltd,19
consistent with other decisions,20 and I respectfully agree. The precautions that
should reasonably be taken were described by Stegman J in Probst v Pick ‘n Pay
Retailers (Pty) Ltd (in relation to a shop floor but I think it applies as much in this
case) to be
‘not so onerous as to require that every spillage must be discovered and cleaned up as
soon as it occurs. Nevertheless, it does require a system which will ensure that spillages
are not allowed to create potential hazards for any material length of time, and that they
will be discovered, and the floor made safe, with reasonable promptitude.’21
The learned judge should not be thought to have said that it is enough to have an
adequate system in place: I think it is implicit in what he said that the system
must be adhered to.

[19] The evidence establishes in this case that the spillage was on the floor for
thirty minutes or more at a time that pedestrians could be expected in the mall
and I agree with the learned judge in the court below that that was excessive.
Whether the fault lay in the system itself (as found by the court below) or whether
it lay instead in the failure of employees to adhere to the system, is not material.
In either event Chartaprops failed to ensure that reasonable precautions were
taken and is liable for the consequent damages. Although the court below found
Chartaprops to be liable on other grounds the finding that it is liable must
nevertheless stand. The appeal against that order must accordingly be
dismissed.

[20] The question that remains is whether Advanced Cleaning is also liable.
The learned judge in the court below found that the negligence of Advanced
Cleaning lay in the inadequacy of its cleaning system. The only basis upon which

19 [1998] 2 All SA 186 (W) at 200g.
20 Turner v Arding & Hobbs, Ltd [1949] All ER 911 (KB) at 912E; Alberts v Engelbrecht (1961) 2
SA 644 (T) at 646D; City of Salisbury v King 1970 (2) 528 (RAD); Jones v Maceys of Salisbury
(Pvt) Ltd 1982 (2) 139 (ZHC) at 141H.
21 Stegmann J in Probst v Pick ‘n Pay Retailers (Pty) Ltd [1998] 2 All SA 186 (W) at p 200, in
which the leading cases in this country and abroad are considered.

the system was said to be inadequate was that the spillage remained on the floor
for an excessive time but that reasoning seems to me to be faulty. I do not think
criticism can be directed at the system. It seems to me that what occurred in this
case is that the system was not adhered to by its employees. But once more I do
not think that it is material whether the omission that caused the harm is
attributed to Advanced Cleaning or to its employees. If the omission was that of
its employees Advanced Cleaning cannot be held vicariously liable unless the
employee is himself or herself liable. And in my view liability does not arise from
the omission, whether the omission was that of Advanced Cleaning or its
employees.

[21] For in our law a person is generally not obliged to act so as to prevent
harm to others even though it might be reasonable for him or her to have done
so. In order for liability to arise the omission must be not only negligent but also
wrongful. And as pointed out in the passage from Two Oceans Aquarium that I
referred to earlier an omission is wrongful only where the law recognises that an
action should lie (that the person concerned had a legal duty not to be negligent).

[22] A person who contracts to clean a floor that is used by members of the
public – whether under a contract of employment or some other form of contract
– is no doubt bound to his or her employer to fulfill those contractual obligations.
But it does not follow that he or she is liable to third parties if he or she omits to
do so, even if the omission meets the ordinary test for negligence as it was
articulated in Kruger v Coetzee. There are indeed cases in which it has been
held that the assumption of contractual obligations gives rise to a legal duty to
third parties to perform those obligations without negligence. In Blore v Standard
General Insurance Co Ltd,22 for example, it was held on exception that a garage
that failed to detect a defect in a motor vehicle, in breach of its contractual
undertaking to the owner, was liable for damage caused to a third party by the

22 1972 (2) SA 89 (O).

defect.23 In Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd24 Van Zyl J
expressed the opinion – his opinion was obiter and I express no view on its
correctness – that a security firm that had contracted to guard premises had a
legal duty to third parties to guard vehicles lawfully parked on the premises. But
those cases and others like them do no more than demonstrate that the
assumption of contractual obligations is capable of giving rise to delictual liability.
Whether it does so in a particular case is a matter that will be determined by legal
and public policy. For as Brand JA said in Two Oceans,25 when a court is asked
to accept that an omission is wrongful in the absence of precedent it is being
asked to extend delictual liability to a situation where none existed before and in
that event
‘[t]he crucial question…is whether there are any considerations of public or legal policy
which require that extension’.26

[23] The learned judge in the court below did not pertinently consider whether
Advanced Cleaning (or its employees) were under a legal duty towards members
of the public not to be negligent and appears to have assumed that their conduct
was actionable. In that respect I think it erred.

[24] I am not aware of any precedent that that has pertinently considered and
settled that question in the present context. And in Lillicrap, Wassenaar and
Partners v Pilkington Brothers (SA) (Pty) Ltd27 Grosskopf AJA pointed out that

23 In a commentary on that decision Professor Boberg takes issue with its reasoning but he adds
that a proper rationale for imposing liability in that case was that the garage would have known
that the vehicle would be introduced onto the road in reliance upon proper performance of the
contract: P.Q.R. Boberg ‘Liability for Omissions – The Case of the Defective Motor-Car’ (1972) 89
SALJ 207.
24 1990 (2) SA 520 (W).
25 Cited above.
26 There are numerous other cases in this court to the same effect. For example, Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) 498G-499A;
Knop v Johannesburg City Council 1995 (2) SA 1 (A) 26I-27I; Minister of Safety and Security v
Van Duivenboden 2002 (6) SA 431 (SCA) para 13; Gouda Boerdery BK v Transnet 2005 (5) SA
490 (SCA) para 12; Local Transitional Council of Delmas v Boshoff 2005 (5) SA 514 (SCA) para
19; Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1)
SA 461 (SCA) paras 14, 15, 16 and 28.
27 1985 (1) SA 475 (A) 500D.

our law adopts a conservative approach to the extension of Aquilian liability. I do
not think there are any considerations of legal or public policy that call for an
extension of liability to a cleaner who is contracted to keep the floors of a
shopping mall clean. The same considerations that cast upon the person in
control of the shopping mall a duty to ensure that precautions are taken to keep
the floors safe seem to me to militate against an action lying against the cleaner.
For it is to that person rather than the cleaner that the public rely upon to keep
the floor safe. They are protected by the liability of the person in control of the
premises if the cleaner who has been deputed to perform that function
negligently fails to do so and I see nothing that calls for an action to lie against
the cleaner as well. As to the incidence of liability between that person and the
cleaner that is capable of being regulated by the terms of their contract, whether
the cleaner be an employee or an independent contractor, and requires no
intervention by the law. Indeed, I think it would be most unjust if the law were to
require as a condition for taking up a mop and a bucket in return for a wage that
the cleaner should assume legal responsibility for the safety of the floors. I see
no distinction when the person who wields the mop is not an employee but an
independent contractor. That the independent contractor is a commercial
concern seems to me a distinction only of degree. No doubt an action lies against
the cleaner for damages caused by positive conduct but that is another matter.

[25] In my view no legal duty was owed towards the public by Advanced
Cleaning or its employees to take reasonable steps to keep the floors safe and
any omission to do so on their part is not actionable. In those circumstances
Advanced Cleaning should not have been held liable for the damages, whether
directly for any omission on its part, or vicariously for any omission of its
employees. I think the appeal by Advanced Cleaning should accordingly
succeed.

[26] I would dismiss the appeal by Chartaprops, allow the appeal by Advanced
Cleaning, and alter the order of the court below accordingly.

__________________
R.W. NUGENT
JUDGE OF APPEAL

PONNAN  JA  (SCOTT and MAYA JJA and LEACH AJA concurring):

PONNAN JA

[27] I have read the judgment of Nugent JA with which I respectfully am unable
to agree. The salient facts, which for the most part are either common cause or
undisputed, are set out in the judgment of my learned Colleague.

[28] The general rule in our law is that a principal is not liable for the wrongs
committed by an independent contractor or its employees. But, as Glanville
Williams put it:
‘One of the most disturbing features of the law of tort in recent years is the way in which
the courts have extended, seemingly without any reference to considerations of policy,
the liability for independent contractors’.28
Prominent among the cases that sowed the seeds of the large extension that has
since taken place was Dalton v Angus29 and the oft-quoted remark that ‘a person
causing something to be done, the doing of which casts on him a duty, cannot
escape from the responsibility attaching on him of seeing that duty performed by
delegating it to a contractor’.
As has been correctly observed, this dictum if literally applied, would create
vicarious responsibility for any and every act of negligence performed by an
independent contractor in the course of doing the work and would efface the
whole distinction between employee and independent contractor.30

28 Glanville Williams ‘Liability for Independent Contractors’ (1956) Cambridge Law Journal p 180.
29 (1881) 6 App. Cas. 740 at 829.
30 Williams p 181.

[29] When a principal will indeed be liable for the negligence of an independent
contractor has been the subject of continuing debate in foreign jurisdictions. A
legacy of that debate in the terminology of English Law is the concept of non-
delegable duty. A more accurate description of what is at play is captured by the
alternative name for a non-delegable duty, namely, a ‘personal duty’.31 A duty of
this nature involves what has been described as ‘a special responsibility or duty
to see that care is taken’.32 Such a duty enables a plaintiff to outflank the general
principle that a defendant is not vicariously responsible for the negligence of an
independent contractor where the causative agent of the negligence relied on
was not an employee of the defendant but an independent contractor.

[30] From a practical standpoint, according to Fleming ‘its most perplexing
feature is the apparent absence of any coherent theory to explain when, and
why, a particular duty should be so classified’ and ‘whether the resulting
uncertainty and complexity of the law is matched by any corresponding
advantages’.33 That complexity and uncertainty may well be compounded in our
law, for, as Scott JA observed in McIntosh v Premier, KwaZulu-Natal:34
‘But the word “duty”, and sometimes even the expression “legal duty” [in the context of
the second leg of the test for negligence as formulated by Holmes JA in Kruger v
Coetzee],35 must not be confused with the concept of ”legal duty” in the context of
wrongfulness which, . . .  is distinct from the issue of negligence.  . . .  The use of the
expression “duty of care” is similarly a source of confusion. In English law “duty of care”
is used to denote both what in South African law would be the second leg of the inquiry
into negligence and legal duty in the context of wrongfulness. As Brand JA observed in
the Trustees, Two Oceans Aquarium Trust case, at 144F, “duty of care” in English law
“straddles both elements of wrongfulness and negligence” ’. (See also Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA.36)

31 John Murphy ‘The Liability Bases of Common Law Non-Delegable Duties – A Reply to
Christian Witting’ (2007) 30(1) UNSW Law Journal 86 p 98.
32 Kondis v State Transport Authority (1984) 154 CLR 672 at 687.
33 John G Fleming The Law of Torts 9 ed (1998) p 434.
34 (632/2007) [2008] ZASCA 62 (29 May 2008) para 12.
35 1966 (2) SA 428 (A) at 430 E-F.
36 2006 (1) SA 461 (SCA) para 14.

[31] Indeed it has been said that the classification of a duty as non-delegable
in the circumstances of particular cases rests on little more than assertion.37
According to Kirby J,
‘The law governing non-delegable duties of care has been described as a "mess",
comprising "a random group of cases" giving rise to a basis of liability that is "remarkably
under-theorised".  The instances in which a non-delegable duty has been upheld have
been variously labelled "an inexplicable rag-bag of cases" comprising an erroneous
feature of the "über-tort of negligence" and an "embarrassing coda" to judicial and
scholarly writings on the scope of vicarious liability for wrongs done by others. Judges
have been taken to task for their reluctance, or incapacity, to express a clear theory to
account for the nature and ambit of non-delegable duties of care. The whole field has
been assailed as one involving serious defects, containing numerous "aberrations" that
have plunged this area of the law of tort into "juridical darkness" and "conceptual
uncertainty". Courts of high authority have been accused of coming to the right result for
the wrong reasons; or the wrong result despite adopting the right reasons’.38

[32] Kondis v State Transport Authority (1984) 154 CLR 672, identified some of
the principal categories of case in which the duty to take reasonable care under
the ordinary law of negligence is non-delegable: namely - adjoining owners of
land in relation to work threatening support or common walls; master and servant
in relation to a safe system of work; hospital and patient; school authority and
pupil.39 (See also Saayman v Visser.40)

[33] One further category of case to which Kondis alluded was that of invitor
and invitee. However, certainly in Australia, it must now be taken as settled that
in relation to a person in the position of an invitee, the duty of an invitor is no

37 Kondis p 684.
38 Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 at 37.
39 See also Australian Safeway Stores Proprietary Limited v Zaluzna (1987) 61 ALJR 180 p 184,
Clerk & Lindsell on Torts 19 ed (2006) 6-57 – 6-67.
40 411/2007) [2008] ZASCA 71 (30 May 2008) para 19.

more and no less than the ordinary duty to take reasonable care. For, as it was
put in Voli v Inglewood Shire Council and Another,41
‘But, even without the aid of a statue such as now exists in England, the trend of judicial
authority has been to treat the liability of an occupier for mishaps upon his premises as
governed by a duty of care arising from the general principles of the law of negligence.
The special rules concerning invitees, licensees and others are ultimately subservient to
those general principles.  Instead of first looking at the capacity in which the plaintiff
comes upon the premises, and putting him into a category by which his rights are
measured, the tendency now is to look at all the circumstances of the case, including the
activities of the occupier upon, or in respect of, the premises, and to measure his liability
against the conduct that would be expected of a reasonably careful man in such
circumstances. . . . . It seems better to appreciate that the ultimate question is one of fact
and governed by general rules, than to create new categories and distinctions.’

[34] According to John Murphy,
'[i]f we consider various classic examples of a non-delegable duty – such as the duty
owed by an employer to his employees…, by a health authority to hospital patients… or
by an education authority to school children… – we can see in each case the presence
of especial vulnerability.  Employees in the workplace, patients in hospital beds and
children at single-teacher schools all have in common the fact that they find themselves
in an environment the safety of which is controlled by some other person in whom they
are required to place some measure of trust and reliance.  Even if we turn to the various
non-classic, but equally well established, categories of non-delegable duty – that is,
where the defendant was in control of an abnormally dangerous person, or an
abnormally dangerous thing… – we can again see the presence of either abnormal risk
or heightened vulnerability’.
But as Murphy is himself quick to point out ‘it must be conceded at the outset that
any explanatory account of the kind or kinds of liability attached to non-delegable
duties based on the existing case law requires an exercise in selectivity. This is
because the judges are as divided in their views as academics’.42

41 (1962-1963) 110 CLR 74 at 89.
42 Murphy p 94.

[35] Some cases have been explained as turning on strict liability whilst others,
as a form of vicarious liability. As to the former, Kirby J noted,
‘It is sufficient to notice that decisions of this Court after Kondis, … point out the many
difficulties that lie behind adopting principles cast in terms of non-delegable duties. Not
least of these difficulties is that a non-delegable duty is a form of strict liability and Burnie
Port Authority43 … shows the disfavour with which strict liability is now viewed.'44
Strict liability, I may add, is viewed with similar disfavour by our courts (see
Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd 2003 (4) SA 285 (SCA)).
Vicarious liability as a postulate is equally untenable for it flies in the face of the
general principle that a person is not liable for an accident occurring without his
own fault or that of his servants in the course of their employment. Little wonder
then that Fleming would describe those cases as a disguised form of vicarious
liability under the fictitious guise of non-delegable duties.45 To once again borrow
from Glanville Williams,
‘[w]e need some sensible reason why, in any particular case, he should be liable where
the injury occurs without his fault but through the fault of an independent contractor
employed by him. No reason is furnished in the judgments under discussion. Instead, we
are merely treated to the logical fraud of the “nondelegable duty” ’.46

[36] Many of the statements explaining the nature and consequences of a non-
delegable duty, have been criticized on the ground that they offer no criteria
distinguishing those duties which are non-delegable from those which are not.47
But apart from true instances of strict liability particularly where the duty is a
statutory one, the distinction between delegable and non-delegable duties does
not, it seems, really amount to more than the adoption of convenient headings for
those cases in which defendants have been held not liable for the negligence of
independent contractors and cases in which they have. However, the explanation

43 Burnie Port Authority v General Jones Pty. Limited (1992-1994) 179 CLR 520.
44 Leichhardt Municipal Council p 75.
45 Christian Witting  ‘Breach of the Non-Delegable Duty: Defending Limited Strict Liability in Tort’
(2006) 29(3) UNSW Law Journal p 33 at 42 and 47, Williams p 185, Fleming p 434, Burnie Port p
75.
46 Williams p 198.
47 Williams p 183-4.

given for the non-delegable relationship has been very general – no more than
the existence of 'some element' that 'makes it appropriate' to impose on the
defendant a duty to ensure that the safety of the person and property of others is
observed – a duty not discharged merely by securing a competent contractor.48
The truth, according to Glanville Williams, ‘seems to be that the cases are
decided on no rational grounds, but depend merely on whether a judge is
attracted by the language of nondelegable duty’.49

[37] It would be fair to say that there has been great expansion in recent years
of the use of independent contractors, and out-sourcing in the place of
employees. It is unlikely that vicarious liability for servants would ever have
developed if servants as a class had been capable of paying damages and costs.
The historical rationale for imputing liability to a master, namely that they had
deeper pockets hardly applies, I daresay, to most modern contractors, who may
in fact be wealthier than their principals. Where both principal and independent
contractor are large firms or covered by insurance the incidence of liability may
not matter much. But where the principal is an individual without insurance, the
imposition of liability upon him may cause grave hardship. From the point of view
of a plaintiff, the only case in which the liability of a principal is advantageous is
where the independent contractor is unable to pay damages. Whether indeed
this situation is sufficiently frequent to warrant provision being made for it must
be open to doubt, particularly when it adds so greatly to the difficulty of the law.50
Courts have to be pragmatic and realistic, and have to take into account the
wider implications of their findings on matters such as these (Tsogo Sun
Holdings (Pty) Ltd v Qing-He Shan 2006 (6) SA 537 (SCA) para 10).

[38] It must be accepted that the content of the ordinary common law duty is to
exercise reasonable care (and skill) or to take reasonable steps to avoid risk of
harm to a person to whom the duty is owed.  The degree or standard of care

48 Leichhardt Municipal Council p 63.
49 Williams p 186.
50 Williams p 195.

required varies with the risk involved.  It follows that those who engage in
inherently dangerous operations must take precautions not required of persons
engaged in routine activities.  This involves no departure from the standard of
reasonable care for it predicates that the reasonable person will take more
stringent precautions to avoid the risk of injury arising from dangerous
operations.51 The concept of personal duty departs from the basic principles of
liability in negligence by substituting for the duty to take reasonable care a more
stringent duty - a duty to ensure that reasonable care is taken.

[39] Traditionally, non-delegable duties have been held to apply in instances
where; first, the defendant's enterprise carries with it a substantial risk and
secondly, the defendant assumed a particular responsibility towards the claimant.
Neither of which in my view is present in this case.  As already stated, our
‘ordinary’ law of negligence does take proper account of the presence of
abnormally high risks and especial vulnerabilities. Thus where those features are
found to be present our law expects greater vigilance from a defendant to
prevent the risk of harm from materialising, for that according to our law is what a
reasonable person in the position of the defendant would do. In the nature of a
coherent legal doctrine, the response of our law in those circumstances should
not be to impose strict liability or to resort to a disguised form of vicarious liability
but rather to insist on a higher standard of care. It follows that the correct
approach to the liability of a principal for the negligence of an independent
contractor is to apply the fundamental rule of our law that obliges a person to
exercise that degree of care that the circumstances demand. In Cape Town
Municipality v Paine,52 Innes CJ said:
‘The question whether, in any given situation, a reasonable man would have foreseen
the likelihood of harm and governed his conduct accordingly, is one to be decided in
each case upon a consideration of all the circumstances. Once it is clear that the danger
would have been foreseen and guarded against by the diligens paterfamilias, the duty to
take care is established, and it only remains to ascertain whether it has been

51 Kondis p 679.
52 1923 AD 207 at 217.

discharged. Now, the English Courts have adopted certain hard and fast rules governing
enquiries into the existence of the duty and the standard of care required in particular
cases.  Speaking generally, these rules are based upon considerations which, under our
practice, also would be properly taken into account as affecting the judgment of a
reasonable man; and the cases which embody them are of great assistance and
instruction. But, as pointed out in Transvaal and Rhodesian Estates Ltd v Golding 1917
AD 18 and Farmer v Robinson Gold Mining Co 1917 AD 501, there is an advantage in
adhering to the general principle of the Aquilian law and in determining the existence or
non-existence of culpa by applying the test of a reasonable man’s judgment to the facts
of each case. The larger latitude allowed in such an enquiry is to be preferred to
restriction within the more rigid limits of the English rules. It must be noted, however, ─
and the above remarks are subject to that proviso – that mere omission did not under
the lex aquilia constitute culpa; it only did so when connected with prior conduct.’

[40] There is an obvious difference between committing work to a contractor to
be executed from which, if properly done, no injurious consequences can arise,
as happened in this case (the first category), and handing over to him work to be
done from which mischievous consequences will arise unless preventive
measures are adopted (the second category). In this regard Colman AJ stated in
Crawhall v Minister of Transport:53
‘Nor, in my judgment, is the occupier of premises liable for the consequences of the
negligent conduct on those premises of an independent contractor whom he has
engaged to do work thereon, if the negligent act or omission was not one which was
authorised by or known to the occupier or one which could reasonably have been
foreseen, provided that the work which the independent contractor was engaged to do
was not pregnant with danger to persons expected to be on the property. But if work has
to be done on premises to which the public have access, and that work can reasonably
be expected to cause damage unless proper precautions are taken, the duty of the
occupier to see that those precautions are taken and that the premises are safe persists,
whether he does the work himself or through his own servants or delegates it to an
independent contractor. That seems to me to be the effect of the judgment of Stratford,
ACJ, in Dukes v Marthinusen, 1937 AD 12, and ...’.

53 1963 (3) SA 614 (T) at 617 F-H.

[41] That distinction emerges as well from the decision of Minister of Posts and
Telegraphs v Jo’burg Consolidated Investment Co., Ltd 1918 TPD 253, which
held (at p 260): ‘where an act which is carried out with proper precautions will
ordinarily speaking not cause danger, the doctrine of the independent contractor
applies’. Whilst it may be just to hold the party authorising the work in the first
category of case exempt from liability for injury resulting from negligence which
he had no reason to anticipate, there may well be, on the other hand, good
ground for holding him liable for injury caused by an act certain to be attended
with injurious consequences if such consequences are not in fact prevented.
That it seems to me, as I have attempted to demonstrate, is consistent with our
‘ordinary’ law of negligence. In the second category, if liability is to attach to the
principal it would be in consequence of his/her negligence in failing to take
preventative measures to prevent the risk of harm from materialising that a
reasonable person in those circumstances would have taken, rather than in
accordance with a proposition framed in terms of a non-delegable duty. That
proposition according to Hayne J, on examination, not only has ‘no sound
doctrinal foundation’ but ‘cannot stand with the restatement of the [Australian]
common law of negligence …’.54

[42] More recently Langley Fox Building Partnership (Pty) Ltd v De Valence55
acknowledged the general rule of no liability of a principal for the civil wrongs of
an independent contractor except where the principal was personally at fault.
The test for negligence in a case such as this, consonant with the classic test for
culpa laid down in Kruger v Coetzee,56 was set out by Goldstone AJA as follows:
‘(a)
would a reasonable man have foreseen the risk of danger in consequence of the
work he employed the contractor to perform?  If so,
(b)
would a reasonable man have taken steps to guard against the danger? If so,
(c)
were such steps duly taken in the case in question?’

54Leichhardt p 70.
55 1991 (1) SA 1 (A).
56 Above n 34.

[43] In determining the answer to the second enquiry into negligence,
Goldstone AJA emphasized the following, albeit by no means exhaustive list of
factors:
‘[t]he nature of the danger; the context in which the danger may arise; the degree of expertise
available to the employer and the independent contractor respectively; and the means available
to the employer to avert the danger.’
Applying this test of negligence to the facts, Goldstone AJA held that it was
foreseeable to a reasonable person in the position of Langley Fox that the
workmen erecting the ceiling would require some form of construction to raise it
above the level of the sidewalk, as an obstruction of such a nature would
necessarily constitute a source of serious potential danger to pedestrians using
the sidewalk. Accordingly, ‘[T]o place it there, and no more, was an inherently
dangerous act.’57

[44] It is not easy to see why an exception should be specifically carved out
allowing a person injured to recover from a principal in addition to the normal
rights that the person enjoys against the independent contractor posited as the
effective cause of the wrong. In particular, it is difficult to see why the general
policy of the law that the economic cost of the wrong should be borne by the
legal entity immediately responsible for it, should not be enforced in this case.
Furthermore, to shift the economic cost of negligent acts and omissions from
Advanced Cleaning, the independent contractor with primary responsibility, to
Chartaprops, because of the legal fiction of non-delegability, appears to me to be
undesirable.

[45] There are few operations entrusted to an independent contractor by a
principal that are not capable, if due precautions are not observed, of being
sources of danger to others. If a principal were to be held liable for that reason
alone the distinction between ‘employee’ and ‘independent contractor’ will all but

57 At 12I.

disappear from our law. This plainly is not the type of case where it can be said
that Chartaprops negligently selected an independent contractor or that it so
interfered with the work that damage results or that it authorised or ratified the
wrongful act. The matter thus falls to be decided on the basis that the damage
complained of was caused solely by the wrongful act or omission of the
independent contractor, Advanced Cleaning or its employee.

[46] Chartaprops did not merely content itself with contracting Advanced
Cleaning to perform the cleaning services in the shopping mall. It did more. Its
centre manager consulted with the cleaning supervisor each morning and
personally inspected the floors of the shopping mall on a regular basis to ensure
that it had been properly cleaned. If any spillage or litter was observed, he
ensured its immediate removal. That being so it seems to me that Chartaprops
did all that a reasonable person could do towards seeing that the floors of the
shopping mall were safe.  Where, as here, the duty is to take care that the
premises are safe I cannot see how it can be discharged better than by the
employment of a competent contractor. That was done by Chartaprops in this
case, who had no means of knowing that the work of Advanced Cleaning was
defective.  Chartaprops, as a matter of fact, had taken the care which was
incumbent on it to make the premises reasonably safe.

[47] Neither the terms of Advanced Cleaning’s engagement, nor the terms of
its contract with Chartaprops, can operate to discharge it from a legal duty to
persons who are strangers to those contracts.  Nor can they directly determine
what it must do to satisfy its duty to such persons.  That duty is cast upon it by
law, not because it made a contract, but because it entered upon the work.
Nevertheless its contract with the building owner is not an irrelevant
circumstance, for it determines the task entered upon.

[48] Chartaprops was obliged to take no more than reasonable steps to guard
against foreseeable harm to the public. In this regard, it is well to recall the words
of Scott JA in Pretoria City Council v De Jager:58
‘Whether in any particular case the steps actually taken are to be regarded as
reasonable or not depends upon a consideration of all the facts and circumstances of
the case. It follows that merely because the harm which was foreseeable did eventuate
does not mean that the steps taken were necessarily unreasonable. Ultimately the
inquiry involves a value judgement.’
Applying that test I am satisfied that the High Court erred in holding Chartaprops
liable. Its finding in relation to Advanced Cleaning, however, cannot be faulted.

[49] As to costs. In my view no warrant exists for a departure from the general
rule that costs should follow the result in this case.

[50] In the result:

The appeal of the first appellant is upheld with costs.

The appeal of the second appellant is dismissed with costs.
The order of the court below is set aside and the following is
substituted in its stead:
‘(a)
The claim against the first defendant is dismissed with costs.
(b)
It is declared that the second defendant is liable to the
plaintiff for such damages as might be agreed upon or
proved in consequence of the event that is the subject of this
claim.
(c)
The second defendant is ordered to pay the plaintiff’s costs.’

_________________
V M  PONNAN
JUDGE OF APPEAL

58 1997 (2) SA 46 (A) at 55H-56C.

APPEARANCES:

COUNSEL FOR 1st APPELLANT

E J FERREIRA
COUNSEL FOR 2ND APPELLANT
C ACKER

INSTRUCTED BY (1st Appellant)

LINDSAY, KELLER & PARTNERS

ROSEBANK

(2nd Appellant)
EVERINGHAM, ROGERS & PARTNERS

JOHANNESBURG
CORRESPONDENTS (Both Appellants)
WEBBERS

BLOEMFONTEIN

COUNSEL FOR RESPONDENT

G NEL
INSTRUCTED BY

TAITZ & SKIKNE

JOHANNESBURG
CORRESPONDENTS

LOVIUS BLOCK

BLOEMFONTEIN
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

25 September 2008

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

CHARTAPROPS 16 v SILBERMAN
Case No  :  (300/07) [2008] ZASCA 115 (25 September 2008)

Media Statement

Today the majority of the Supreme Court of Appeal (SCA) upheld an appeal by Chartaprops 16 (Pty)
Ltd (Chartaprops) which carries on business as the Killarney Shopping Mall (the Mall) in
Johannesburg and dismissed an appeal by Advanced Cleaning Services (CC) (Advanced Cleaning)
with whom the former had contracted to provide cleaning services at the Mall.

What gave rise to the appeal was an action instituted by Ms Michelle Silberman, a conference tele-
marketer, who slipped on a gel-like substance and fell in the pedestrian passage on the upper level of
the Mall during the course of the afternoon of 14 December 2000.  In consequence of the fall, she
sustained fractures to both elbows, as well as certain abrasions and soft tissue injuries. She
accordingly sued both Chartaprops and Advanced Cleaning in the Johannesburg High Court. The
issues of liability and quantum were separated and the trial proceeded solely on the former. The High
Court held both Chartaprops and Advanced Cleaning jointly and severally liable to her for such
damages as may in due course be agreed upon or proved.

On appeal, the majority of the SCA re-affirmed the general principle in our law that a principal is not
liable for the wrongs committed by an independent contractor or its employees. As Chartaprops was
obliged to take no more than reasonable steps to guard against foreseeable harm to the public, which
it had done by engaging a competent contractor, it could not be held liable to Ms Silberman. Insofar
as Advanced Cleaning was concerned, the damage complained of was caused solely as a result of
the defective performance by one of its employees of the work entrusted to it. The majority
accordingly held that the finding by the High Court that Advanced Cleaning was liable, could
accordingly not be faulted and its appeal thus had to fail.

The minority judgment held that the duty cast upon Chartaprops in this case was not capable of being
delegated to Advanced Cleaning. It accordingly held that it would have dismissed the appeal by
Chartaprops and upheld the appeal by Advanced Cleaning.

--- ends ---