Makhanya v University of Zululand - LexisNexis South Africa

18TWO CLAIMS ARISING FROM COMMON FACTS[40] It is not unusual for two rights to be asserted arising from the samefacts. That is what occurred in a leading case that came before this court,which I find to be most instructive in the present context.[41] In Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA)(Pty)Ltd 26 the plaintiff said that it had two distinct claims arising from preciselythe same facts. The facts were briefly these. A company (the plaintiff)contracted with a firm of professional engineers (the defendant) to provideprofessional services. The company was not satisfied with the way in whichthe engineers performed their services. The facts were capable of founding aclaim for breach of contract. But the company chose instead to sue theengineers in delict for negligence. That was a novel claim, because adelictual right arising in those circumstances had not been recognised in lawbefore. The defendant opposed the claim on the basis that the claim was badin law because the right that was asserted did not exist.[42] The facts that were relied upon in support of the delictual claimcorresponded with the facts that would have supported a claim in contract.What the court was being asked to do was to recognise that the company hadtwo separate claims arising from the same set of facts. This is how the courtexpressed the question that was before it: 27‘The only infringement of which the [company] complains is the infringement of the[engineers’] contractual duty to perform specific professional work with due diligence;and the damages which the [company] claims, are those which would place it in theposition it would have occupied if the contract had been properly performed. In261985 (1) SA 475 (A).27At 499D-E.