Trustees for the time being of Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd

The Two Oceans Aquarium Trust operated an aquarium in Cape Town. Prior to the trust’s formal establishment and the conclusion of a consultancy contract, Kantey & Templer, consulting engineers, assisted a joint venture investigating the feasibility and design of the aquarium. The engineers recommended a design option using polyurethane lining to waterproof the tanks rather than water-retaining concrete. After construction and operation, the lining proved porous, allowing seawater to corrode the concrete reinforcement, necessitating extensive remedial works and causing loss of revenue. The trust claimed damages for the cost of repairs and mitigation, alleging that the respondent’s negligent pre-contractual design advice caused pure economic loss.

The appeal was dismissed with costs; the exception to the delictual claim was correctly upheld, precluding reliance on pre-contractual negligent conduct.

The case reaffirmed the cautious South African approach to extending delictual liability for pure economic loss, particularly in professional negligence and construction contexts. It clarified that the absence of a contract at the time of negligent conduct does not automatically justify delictual liability where contractual regulation was contemplated and feasible. The judgment reinforced Lillicrap and aligned South African law with vulnerability-based reasoning.