Minister of Public Works and Land Affairs v Group Five Building Ltd (681/1994) [1996] ZASCA 93 (17 September 1996)

2 This appeal concerns the interpretation of a building contract between

the parties for the erection by the respondent of the archive building in

Cape Town on the site of the old Roeland Street gaol. As is usual the

contract consists of a number of documents including the Conditions of

Contract, the Bills of Quantities and the Drawings. In terms of clause 6 (1)

of the Conditions of Contract,

"[all] material and work shall be as described on the Drawings and in the .... Bills of Quantities."

The dispute arises from one item in the Bills of Quantities, relating

to the roofing of the building. Under the heading "Dakbedekkings" the Bills

of Quantities prescribe the use of "'Cordova' of ander goedgekeurde groen

geglasuurde klei dakteëls ... soos vervaardig deur 'Corobrick (Edms) Bpk.'"

Then follows the disputed provision, viz., item 157A. It reads as follows,

with the critical words underlined:

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"Klei dakteëls tot plat helling op dakhoutwerk gelê, en bevestig soos beskryf alles streng ooreenkomstig die vervaardiger se voorskrifte".

An area of 4312 square metres is specified for this item. The Bills of

Quantities do not indicate how many tiles would be required to cover this

area. The number of tiles could be determined from the area given, the size

of the tiles and the extent of their overlap. The sole information regarding

the size of the tiles and their overlap was to be found in the "vervaardiger

se voorskrifte" mentioned in the Item. These "voorskrifte", it was common

cause, were embodied in a brochure issued by Corobrik. According to this

brochure the size of the Cordova tiles was 406 by 203 mm. However, two

ways of fixing the tiles were set out in the brochure. The one (described as

method A) was for tiles laid under normal conditions. Here a 102 mm

headlap was considered adequate. The second (method B) was for tiles "laid

on a very low pitched roof and where extreme windy conditions prevail".

4 Here a headlap of 203 mm was suggested. By requiring a greater overlap,

method B would use more tiles than method A in covering the same area.

This forms the crux of the dispute between the parties. The respondent sued

in the Cape Provincial Division for an order declaring that method A was

prescribed by the contract. The appellant opposed the claim, and

counterclaimed for an order declaring that method B was the chosen one.

The court a quo (Van Niekerk J) held in favour of the respondent. With

leave granted pursuant to a petition to the Chief Justice the appellant now

appeals against this judgment.

Strictly speaking the brochure does not contain any "voorskrifte"

(directions or instructions). It is more in the nature of an informative

document, giving details of the product and suggesting how it is to be used

in particular circumstances. Its contemplation clearly is that the person

5 using the tiles would have to decide which of the suggested methods would

be appropriate. In the present case it was the architect's duty to stipulate

how the tiles were to be laid. Save for the reference to the manufacturer's

instructions, item 157A of the Bills of Quantities does not reflect any

stipulation as to the overlap required by the contract. I shall consider later

whether any of the other contractual provisions casts light on this matter.

The respondent's argument, which was accepted by the court a quo, was essentially that the court should look no further than item 157A read with the brochure, and that this limited perspective provides an answer to the problem. This argument was developed as follows.

Clause B1.6 of the Bills of Quantities provides;

"Hierdie Hoeveelheidslyste is opgestel ooreenkomstig die jongste Standaardstelsel vir die Opname van Bouerswerk uitgereik deur die Vereniging van Suid-Afrikaanse Bourekenaars. Waar van hierdie stelsel afgewyk is, sal dit duidelik aangedui wees en voorrang

6 geniet."

The Standard System of Measuring Builders' Work, to which

reference is made in the above clause, and to which I shall refer as the

Standard System, provides inter alia as follows:

"3 Scope of bills of quantities

The bills of quantities shall set out all the work to be done in sufficient detail to give a clear idea of the character and cost. Everything of consequence in respect of costs, shown on the drawings or described in the specifications, shall be embodied and nothing shall be left to assumption. The bills of quantities shall be as simple as possible provided that they fully describe the materials and workmanship and accurately represent the work to be executed.

4 Descriptions

Descriptions shall be clear and complete, leaving no reasonable doubt
as to their intent and meaning and containing all the essential
information necessary for pricing

5 Separation of items

Items shall be separated in accordance with the detailed instructions laid down in the various trades, based on the following rules:

a) The recognised and customary trades shall be separated and a combination of such trades in the same item shall be avoided ...."

7 Item 157A of the Bills of Quantities falls within the section dealing

with roofing. By reason of the above provisions of the Standard System a

tenderer is entitled to assume, so it is contended, that every provision

relating to roofing is contained clearly and unambiguously in that section.

He could accordingly not be expected to have regard to any other part of

the contract to determine what the roofing requirements are. And, for

present purposes, the only relevant part of the roofing section is contained

in Item 157A read with the brochure. If the enquiry is limited to these

provisions, the argument concluded, the only reasonable inference is that

method A was prescribed, since it is the normal method to be employed -

if the exceptional method B was intended, the person drawing the Bills of

Quantities would, pursuant to the Standard System, have expressly so

provided.

8 This argument rests heavily on the Standard System, and there was

some debate before us as to its legal effect. The parties specifically

incorporated it in their contract and must, in my view, have intended that

the Bills of Quantities should be read in the light of the Standard System.

It is difficult to generalise on how such an approach would affect the

process of interpretation. One thing is clear, however. If an item in Bills of

Quantities is ambiguous the Standard System cannot render it unambiguous.

In such a case one can only infer that the quantity surveyor who drew the

Bills did not achieve the high standards prescribed by the Standard System.

And the ambiguity would, in my view, have to be resolved by applying

ordinary contractual principles.

I turn now to the interpretation of item 157A read with the brochure.

As already stated, the brochure suggests two alternative methods of fixing

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the tiles. The one is said to be appropriate "under normal conditions". The

other is suggested for "a very low pitched roof and where extreme windy conditions prevail". Does this mean, as the respondent contended, that, in the absence of any indication to the contrary, the normal method, i e method A, should be employed? In my view this does not follow. Item 157A itself mentions that the tiles are to be fixed on a "plat helling". The evidence discloses that this expression served only to indicate to a tenderer that work on the roof would not be rendered difficult by a steep pitch, and I accept that it casts no real light on which method would be appropriate. Nevertheless, putting it at its lowest, there is no indication in the Item that the roof is anything other than "a very low pitched roof. And it was common cause on the evidence that Roeland Street, Cape Town, may well be considered a locality "where extreme windy conditions prevail". What

10 reason therefore is there to assume, by looking only at the Item and the

brochure, that the architect who drew the plans and the quantity surveyor

who drew the Bills intended method A to be employed rather than method

B?

The appellant's contention is that this ambiguity may be resolved by

having regard to other provisions of the contract. In this regard it is

important to note that the method of fixing the tiles influences other aspects

of the building work, and in particular the carpentry. The tiles are fixed to

wooden battens, and the distance between the battens depends on the

method to be used in laying the tiles. Thus the brochure stipulates that, for

method A, the battens are generally to be spaced at 305 mm centres,

whereas for method B the spacing was to be, generally, at 203 mm centres.

The section of the Bills of Quantities dealing with the trade of carpenters

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and joiners lays down that the battens are to be spaced at 203 mm, which is a clear indication that method B is to be applied. But, the respondent argues, by reason of the Standard System, the item dealing with work to be performed by the roofer must be read by itself and not in conjunction with items relating to other "recognised and customary trades" (clause 5 of the Standard System) such as carpenters and joiners. It is not necessary to deal with this argument for reasons which follow.

In the introduction to the Bills of Quantities the tenderer is informed that the building plans issued together with the tender documents do not comprise a complete set "maar dien slegs om 'n gids vir tenderdoeleindes te wees, om die omvang van die werk aan te dui en om die Tenderaar in staat te stel om bekend te raak met die aard en omvang van die Werke en die wyse waarop dit uitgevoer word." Quite clearly these plans are intended

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to be read together with the Bills of Quantities. See also the specific

reference to "the Drawings" in clause 6(1) of the conditions of Contract, quoted above. I cannot imagine that a roofing specialist or other tenderer would make a tender before ascertaining from the plans exactly how the roof is to be constructed. Among these drawings (which, it must be emphasized, form a part of the contract) is one showing a section of the building and another which is described as a "dakplan". Both these plans contain a description of the method to be employed in fixing the tiles. This description corresponds closely with Item 157A, except that it stipulates also that the tiles are to be fixed on battens at 203 mm centres. This is the distance prescribed for Method B. In fact it would be physically impossible to apply Method A where battens are spaced in this way.

The respondent's counsel brushed aside the references to the batten

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spaces in the drawings and in other items of the Bills of Quantities as

merely pointing to a discrepancy between item 157A and the information contained in these documents. Such a discrepancy, it was contended, was provided for in the contractual documents. Clause 6(2) of the Conditions of Contract lays down that, if a contractor were to detect a difference or discrepancy between or in the drawings, specification and/or bills of quantities, it shall be his duty to seek in writing a decision of the owner's representative on the true intent and meaning of the contract. I do not think this provision is really relevant. Obviously an apparent difference or discrepancy in the documents must be resolved in some way, and the contract makes provision for this. It is common cause, however, that all attempts to resolve the dispute between the parties have failed and that, pursuant to clause 27(2) of the Conditions of Contract, the matter has been

14 placed before the courts. We now have to interpret the contract. In

accordance with ordinary principles of interpretation, a court will, where

possible, interpret a contract so as to avoid discrepancies. This can be done

in the present case by reading the ambiguous provisions of item 157A and

the brochure with the descriptions set out on the drawings. If this is done,

it seems clear that the contract between the parties required method B to be

applied.

In the result the appeal succeeds with costs including the costs of two counsel. The order of the court a quo is set aside and the following substituted:

1. An order is made declaring that on a proper construction of item 157A of "Lys no 8" of the Bills of Quantities, being part of Contract no. 860109, the applicable method of fixing roof

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tiles was that described as the "B" method of fixing tiles for a

203 mm headlap in annexure PPC3 to the plaintiffs particulars of claim.

2. Claim A of the plaintiffs particulars of claim is dismissed.

3. The plaintiff is ordered to pay the costs of this action, which are to include the costs of two counsel.

E M GROSSKOPF, JA

EKSTEEN, JA

HARMS, JA OLIVIER, JA

ZULMAN, AJA Concur