Magadaleni Ndlovu v Justin Ncube

Between 2007 and 2008, the plaintiff and defendant entered into a verbal agreement whereby the defendant, a seasoned builder with 36 years' experience and a District Building Inspector at Bulawayo City Council, would construct an extension to the plaintiff's house at Stand 7489/17 Pumula North, Bulawayo. The plaintiff provided the plan and building materials. After completion, the extension was condemned by the Director of Housing and Community Services on 20 February 2008 due to substandard construction: the floor level was below ground level and the roof construction was substandard (pitch and timber sizes). The defendant commenced construction before the plan was approved and failed to have the trenches inspected by the area building inspector before pouring concrete foundations. The roofing was done by a separate artisan recommended by the defendant but hired independently by the plaintiff. Water seeped into the extension due to the defects.

• Whether the extension work done by the defendant was substandard
• Whether the substandard construction required the extension to be rebuilt
• Whether the defendant was liable for the defects and to what extent
• Whether the defendant was responsible for procuring the roofing material
• Whether the defendant brought in the Area Inspector to inspect the extension
• Whether the defendant breached his duty of care as a skilled professional builder

The defendant was ordered to pay the plaintiff ZAR62,543.75 together with interest at the prescribed rate of 5% from 12 May 2009 to date of payment in full. The defendant was ordered to pay costs of suit on the legal practitioner and client scale.

When a person engaged in an activity requiring special skill (such as building construction) fails to exercise the skill reasonably expected of a person in that profession, such lack of skill constitutes negligence (imperitia culpae adnumerator). It is an implied term of a building contract that the contractor must execute work in a workmanlike manner and that all materials used and structures constructed must be of reasonable quality; anything less constitutes negligence. A contractor with specialized expertise owes a duty of care to the client and must act as a diligens pater familias (reasonable person) would, including foreseeing potential risks and providing adequate warnings. Where separate and distinct agreements exist for different aspects of construction work, liability is limited to the scope of each contractor's agreement.

The court noted that if constructing a retail wall could remedy the floor level defect (as suggested by the defendant in testimony), the defendant should have undertaken such remedial work rather than leaving the defect unrepaired. The court also observed that the defendant's position as a District Building Inspector at the City Council made his negligence particularly glaring, given his intimate knowledge of the area's topography from his involvement in constructing the original houses in Pumula North.

This case establishes important principles regarding the professional duties and standard of care required of building contractors in Zimbabwe, particularly those with specialized expertise and professional qualifications. It clarifies the application of the imperitia culpae adnumerator principle in construction contracts and reinforces the implied contractual term that contractors must perform work in a workmanlike manner using materials of reasonable quality. The case also demonstrates how courts assess the scope of liability when multiple contractors are involved in a construction project through separate agreements.