- within Accounting and Audit, Consumer Protection and Real Estate and Construction topic(s)
The South African Supreme Court of Appeal ("SCA") handed down judgment in Pick 'n Pay Retailers (Pty) Ltd ("Pick 'n Pay") v Williams and Another on 26 January 2026. This article highlights two key issues addressed by the SCA. First, whether Pick 'n Pay could avoid delictual liability by relying on the delegation of cleaning duties to an independent contractor. Second, whether the refusal of leave to appeal should be reconsidered under section 17(2)(f) of the Superior Courts Act 10 of 2013, as amended, on grounds that failing to reconsider the High Court's ruling would result in a grave failure of justice or bring the administration of justice into disrepute.
Factual background
On 13 November 2017, Mrs Maria Williams slipped and fell after stepping on an oily-orange spillage at Pick 'n Pay N1 City Mall in Cape Town sustaining multiple injuries. Pick 'n Pay initially agreed to cover Mrs Williams' medical expenses but later failed to do so, which prompted Mrs Williams to institute a delictual claim against Pick 'n Pay in the Western Cape Division of the High Court. Pick 'n Pay contracted with Tradesoon 1020 (Pty) Ltd t/a ("Bluedot") to provide cleaning services under a cleaning service agreement, which indemnified Pick 'n Pay against any damages or losses resulting from Bluedot's employees' negligence in the execution of their contractual duties.
On 1 September 2023, the High Court found Pick 'n Pay liable for 100% of proven damages and ordered Bluedot to indemnify Pick 'n Pay. Dissatisfied, Pick 'n Pay sought leave to appeal to the full court of the High Court unsuccessfully and subsequently petitioned the SCA for leave to appeal.
The non-delegable duty to take reasonable steps
Pick 'n Pay relied on the defence established in Chartaprops 16 (Pty) Ltd v Silberman, which limits a principal's liability for the negligence of an independent contractor. The SCA rejected this defence, affirming that while cleaning tasks may be delegated, the non-delegable duty to take reasonable steps to ensure premises are safe for the public remains intact. Evidence showed Pick 'n Pay failed to maintain adequate systems to detect and remedy spillages promptly. The spillage remained long enough to cause Mrs Wiliams' injury, constituting a negligent omission for which Pick 'n Pay remained liable. The court further confirmed that contractual indemnities between Pick 'n Pay and Bluedot do not bar delictual claims by third parties against Pick 'n Pay.
Reconsideration under section 17(2)(f) Superior Courts Act
Pick 'n Pay argued that the High Court misapplied the law and facts, seeking reconsideration under section 17(2)(f). The SCA clarified that section 17(2)(f) is an extraordinary remedy with a stringent test, not a further appeal avenue. Pick 'n Pay failed to establish any misdirection by the High Court or prospects of a different outcome. The SCA dismissed the application for reconsideration with costs.
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