Martin Harris & Seuns OVS (Edms) Bpk v Die Qwa Qwa Regeringsdiens; Die Qwa Qwa Regeringsdiens v Martin Harris & Seuns OVS (Edms) Bpk

The appellant/respondent, Martin Harris & Seuns OVS (Edms) Bpk, was a building contractor whose tender for the construction of a hospital at Phuthaditjhaba in the former Qwa Qwa self-governing territory was accepted in 1977–1978. The contract price was approximately R8.9 million, with a completion period of six years, later extended. The project was completed and handed over in June 1987. Disputes arose regarding alleged delays and disruptions allegedly caused by the employer, the Qwa Qwa Regeringsdiens, its agents, the architect, engineer, and a prior earthworks contractor. The contractor instituted action claiming damages for delay (claims 1 and 2) and payment for additional work (claim 3). The employer opposed the claims on the merits and raised prescription. Certain issues were decided in limine on the pleadings alone.

The appeal against the dismissal of claims 1 and 2 failed; the trial court’s order upholding the points in limine was confirmed. The cross-appeal relating to prescription of claim 3 was dismissed, and claim 3 was allowed to proceed to trial.

The case is significant for South African construction and contract law as it clarifies the limits of implied terms in the face of express contractual provisions, confirms the application of mora creditoris in construction contracts, and emphasises that where a contract provides specific remedies for delay, those remedies may exclude a separate damages claim.