The Western Cape High Court in the December 2019 decision of Holtzhauzen v Cenprop Real Estate and Naheel Investments confirmed the general proposition that a principal is not liable for the negligent conduct of its independent contractor.

This was a slip and trip claim where the shopping mall owner had delegated cleaning services to a professional cleaning company to deal with any spillage in public areas.

The court referred to and approved the majority decision of the Supreme Court of Appeal in Chartaprops 16 (Pty) Ltd and Another v Silberman. Both courts reaffirmed 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 required varies with the risk involved.

Both courts referenced academic commentary on the disturbing extension of:

“… seemingly without any reference to considerations of public policy, the liability for independent contractors. …   We need some sensible reason why, in any particular case, [the principal] 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”. 

The majority in Chartaprops said:

 “… 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 the principal for the negligence of an independent contractor is to apply the fundamental rule of law that obliges a person to exercise that degree of care that the circumstances demand”.

Both courts said that it is undesirable to shift the economic costs of negligent conduct of an independent contractor to the principal because of the legal fiction of ‘non-delegability’.

Chartaprops also says:

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

A principal can, depending on the facts, be negligent in its own right where its own conduct deviates from the standard of reasonable care.

Holtzhauzen is a useful condensed review of the lengthier Chartaprops judgment.