Van Immerzeel & Pohl v Samancor Limited; Cocciante Construction v Samancor Limited

Samancor Ltd, as cessionary of claims from its subsidiary Samancor Chrome Ltd (the employer), sued Van Immerzeel & Pohl (consulting engineers) and Cocciante Construction (a firm) for damages arising from the defective construction of a water pipeline at Steelpoort. A written construction contract was concluded in November 1989 with a contractor identified as “Cocciante Construction”, and a professional services contract in December 1989 with the engineers for supervision. The pipeline was constructed using sub-standard coated and lined pipes and an ineffective cathodic protection system, leading to corrosion and leaks shortly after completion in 1990. The defects necessitated replacement of the entire pipeline. The work had been executed by a close corporation, but the court had to determine whether the contracting party was the firm or the close corporation. The employer had paid substantial amounts under engineer-issued certificates. Samancor claimed damages for replacement costs and remedial works, reduced to account for six years’ use of the defective pipeline.

The appeals were dismissed. Judgment in favour of Samancor was confirmed: damages of R1 208 533.48 against Cocciante Construction and R973 544.48 against Van Immerzeel & Pohl, with joint and several liability capped at R1 208 533.48, and costs against the appellants jointly and severally.

The case is significant for clarifying how courts determine the true identity of a contracting party in construction contracts, the application of prescription where the creditor lacks knowledge of the debtor’s identity, and the liability of contractors and consulting engineers in solidum for overlapping construction defects. It also confirms that damages claims can be validly ceded as part of a sale of business and that patrimonial loss may arise from defective performance even where the employer does not own the affected land.