From : Jemma Jolly

Memo
To : Jivani Naidoo
Date : 8 February 2024
Re : Chartaprops

Dear Jivani

Please note the following:

1. Background and findings of the court

Chartaprops v Silberman (“Chartaprops”)1 is an important case in the South

African context relating to the liability of employers when independent
contractors are employed. In Chartaprops, Mrs Silberman claimed damages
for injuries sustained as a result of slipping on a substance in the passageway
of a shopping mall. The shopping mall was owned and under the control of
Chartaprops. Chartaprops had contracted with Advanced Cleaning to attend
to the cleaning of the shopping mall.

The trial court found that at the time the spillage was encountered by Mrs.
Silberman, the spillage had been on the floor for at least thirty minutes which
constitutes ‘a sufficiently lengthy period so as to constitute a hazard to
members of the public’ and 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’. The court thus concluded that
Advanced Cleaning was negligent and thus liable, and Chartaprops was
vicariously liable for the negligence of Advanced Cleaning.2

1
Chartaprops v Silberman 2008 ZASCA 115 (HC).
2
Chartaprops para 4.
 On appeal, the court considered the consequences of the trial court’s findings.
The appeal court held that the finding that Chartaprops is vicariously liable for
the negligence of Advanced Cleaning is incorrect. Vicarious liability arises due
to a particular relationship existing between the parties. The court referred to
the decision in Colonial Mutual Life Assurance Society Ltd v Macdonald
where it was held that ‘a principle is liable for the acts of his agent where the
agent is a servant but not where the agent is a contractor.’3

Furthermore, the court held that a principle can still be liable for damages
arising from the negligent conduct of an independent contractor but that, that
liability does not arise vicariously but rather from a breach of the principle’s
duty. This duty can be expressed as not merely a duty to take care, but a duty
to provide that care is taken. 4 Essentially, where one employs an independent
contractor, you cannot exempt yourself from all responsibility.

Importantly, the court in Chartaprops held that liability for the conduct of an
independent contractor arises simply by application of the ordinary principles
of delictual liability.5 Where a principle has a duty to take reasonable care, one
cannot discharge of such duty merely by employing an independent
contractor. Where a principle employs an independent contractor, the duty of
care on the principle is transformed into a duty to ensure that care is taken. 6
The court emphasised the importance of considering the circumstances of
each case and held that there are some cases in which such a degree of skill
and care is required that it would be reasonable for a principle to solely rely on
the expertise and skills of an independent contractor to discharge that duty.

However, where a principle and a plaintiff stand in a relationship of ‘special

dependence or vulnerability’, a higher standard of care is placed on the
principle. Chartaprops, as owner and manager of the shopping mall is
expected by members of the public to ensure the premises are reasonably
safe for persons frequenting the property. Members of the public visiting the
premises are not in a position to assess the safety of the premises and

3
Chartaprops para 6.
4
Chartaprops para 7.
5
Chartaprops para 12.
6
Chartaprops para 13.
 therefore this duty falls on the owner. Members of the public are completely
reliant on the owner and therefore a higher duty of care arises.

The majority held that Chartaprops was obliged to take no more than
reasonable steps to guard against foreseeable harm to the public. 7 The court
held that Chartaprops did not merely contract with advanced cleaning but
rather, did more in that Chartaprops appointed a centre manager who
consulted with the cleaning supervisor each morning and inspected the floors
on a regular basis. Further, that Chartaprops ensured employees attended to
the immediate removal of any spillage or leakage that was observed. The
court held that where the duty is to take care that the premises are safe, there
is no better way to discharge such duty than by the appointment of an
independent contractor.8

The court thus found that Chartaprops acted reasonably in the circumstances
and took all the necessary steps to ensure the premises were reasonably safe
for members of the public.

2. Analysis

Chartaprops therefore struck down the concept that a principle can be

vicariously liable for the negligent acts of an independent contractor. The
court held that the relationship between a principle and independent
contractor is not one of such control that the acts of the independent
contractor can be attributed to the principle. The court reaffirmed the general
principle that a principle is not ordinarily responsible for the negligence of an
independent contractor but held that where the principle had a duty of care
and failed to discharge that duty, the principle will be liable based on the
ordinary principles of negligence. Essentially, it must be determined what
degree of care do the circumstances demand from the principle and did the
principle execute that standard of care.

7
Chartaprops para 48.
8
Chartaprops para 46.
 Whether a principle had a legal duty in respect of the obligations of an
independent contractor depends on whether a reasonable person in the
position of the principle would foresee the risk of harm occurring in respect of
the work to be carried out by the independent contractor and would take
reasonable steps to guard against it. The enquiry will depend on the
circumstances of the case having due regard to the nature of the harm, the
degree of skill and expertise of the contractor, and the means available to the
principle to prevent the harm.

Furthermore, the court recognised instances where a higher standard of care

can be expected from the principle, such as where there is a distinct risk of
danger to the public or where the plaintiff- principle relationship is of such a
nature that a special vulnerability exists, then it is accepted that a higher
standard of care must be imposed on the principle.

The implications of the decision in Chartaprops are thus that where a principle
employs an independent contractor, although such principle is not liable for
the negligence of the independent contractor, such principle is bound by an
ordinary duty of care and in some instances; the principle is bound by a higher
standard of care.

The court held that overarching enquiry is whether the steps taken by the
principle were reasonable in the circumstances. It must be noted that merely
because foreseeable harm eventuated, does not mean the steps taken were
necessarily unreasonable. The court will make a value judgement having due
regard to the facts and circumstances of the case.9

3. Application

Considering the above, the following observations can be made with regard to
the current matters we are dealing with:

In the Excellerate/ Mngxekeza matter, Excellerate as owner and/or in control

of the premises has a duty to take reasonable steps to ensure the safety of

9
Chartaprops para 48.
 patrons frequenting the premises. Excellerate will have to demonstrate that it
took all reasonably necessary steps in the circumstances to prevent harm
from ensuing. If Excellerate can show that it delegated a responsible person
to supervise the independent contractor (the cleaning company), that it
inspected the floors on a regular basis, that there were systems in place to
ensure any spillages were promptly observed and removed and that there
was general oversight of the work of the independent contractor, based on
Chartaprops, it should be found that Excellerate is not liable.

In the Growthpoint Properties/ De Klerk matter, Growthpoint Properties as

owner and/or in control of the premises has a duty to take reasonable steps to
ensure the safety of patrons frequenting the premises. Although Growthpoint
Properties employed JP Steenkamp as an independent contractor to attend to
the re-tiling of the passageways of the premises, such appointment did not
relieve Growthpoint Properties of any and all responsibility.

Growthpoint Properties would have to show that it acted reasonably in the

circumstances and prove that there was a responsible person delegated to
oversee the project; that inspections were conducted on a frequent basis and
that all reasonably necessary steps to prevent harm ensuing were taken. The
court will expect that as property owner, Growthpoint Properties had in place
some system of inspection to ensure that any work completed by independent
contractors was done in a manner so as to ensure the safety of its patrons
and alleviate any risk of danger.

4. Concluding remarks

Therefore, the decision in Chartaprops confirmed the position that a principle

is not liable for the negligent conduct of its independent contractor but that the
principle is still subject to the common law duty to exercise reasonable care
and take reasonable steps to avoid risk of harm to persons whom the duty is
owed, especially in those circumstances where a higher standard of care is
expected.
Please see the attached relevant authority.

Thank you kindly.

Jemma Jolly

Everinghams Attorneys