Where the same conduct constitutes both a breach of contract and a delict, giving rise to a concurrence of actions that affords the plaintiff an election which remedy to choose.
It is only where a claim is grounded in the improper performance of a contractual obligation and the parties have deliberately structured their relationship including liability issue through contract, that delictual liability should not ordinarily be superimposed in a manner that undermines the parties’ agreed allocation of risk.
In this judgment, the defendant argued that the claimant’s delictual claim was incompetent because the plaintiffs had impermissibly attempted to circumvent their contractual relationship by recasting a contractual dispute as a delictual claim.
The South African authorities caution against extending delictual liability to cases involving the negligent performance of contractual obligations where the contractual remedies are adequate and the parties have freely allocated risk and responsibility by agreement.
That principle, however, does not operate as a blanket prohibition on delictual claims between parties who may be contractually linked. That exclusionary principle applies only where the claim is founded on a breach of contractual duty and not where the conduct complained of constitutes a breach of an independent delictual duty. An action in delict is not always precluded wherever a contractual claim is competent.
Where the same conduct gives rise to both contractual and delictual liability the plaintiff is free to elect which cause of action to pursue. From the facts at hand, the plaintiffs had pleaded and claimed for physical damage to its property. The duty not to cause physical damage exists independently of any contractual relationship and is owed to all persons who may reasonably be harmed by such conduct.
The court said that the claim was directed at the physical harm to property rather than protecting purely contractual interests and therefore the plaintiffs were not precluded from pursuing a delictual remedy.
The outcome is unsurprising where the claim, as in this case, is not for pure economic loss nor based on contractual breach.