Performance may be delegated, responsibility not: lessons for retailers

In a recent case, the Supreme Court of Appeal (SCA) has reinforced that owners of premises who invite patrons onto their property (like retailers) cannot passively rely on independent contractors to discharge their duty of care but must actively supervise contractors and maintain their own independent safety systems to ensure patron safety.

On 13 November 2017, Mrs Williams slipped on an oily substance while shopping at a retail grocery store in Cape Town, sustaining injuries to her left hip and shoulder.

The retailer owned the premises where the incident occurred and had engaged an independent contractor, under a cleaning service agreement to maintain the store. Despite this arrangement, the SCA upheld the grocery store's delictual liability, clarifying critical principles regarding the responsibilities of retailers who delegate cleaning and maintenance functions.

The central issue: can delegation absolve liability?

The retailer argued that it had discharged its duty of care by engaging the contractor to perform cleaning duties and therefore could not be held liable for the contractor's alleged negligence. The SCA considered the principle enunciated in Chartaprops,¹ that while the performance of duties can be delegated, responsibility for that performance cannot be. Applying this to the facts, the SCA found that the retailer had failed to discharge its duty to its patrons and was accordingly liable.

This judgment provides three critical learnings for retailers and other owners who invite patrons onto their premises:

1. No passive reliance

The SCA held that it was not enough for the retailer to merely hire the contractor's cleaning services; they had a duty to do more rather than passively rely on the contractor doing their work.  The retailer had the responsibility of double-checking and supervising the contractor by actively reviewing its logbooks and implementing effective systems to ensure customer safety.

This principle directly addresses the misconception that engaging a contractor transfers all responsibility. The SCA referred to Langley Fox², which held that whether precautions are taken by an owner or contractor is a contractual matter between them, but as far as the duty to the public is concerned, that duty rests upon the owner.

2. The requirement for independent safety systems

The SCA referenced established case law (Avonmore³and Probst⁴) confirming that owners of premises have a legal duty to implement functional safety systems ensuring that hazards such as spillages are discovered with reasonable promptitude and do not persist for any material length of time.

In this case, the retailer's employees did not review or audit the contractor's cleaning logbook, which remained exclusively with the contractor's supervisor. The retailer's witness acknowledged that no oversight or verification of the contractor's cleaning activities was undertaken.

3. The failure to implement routine checks

The SCA found that in high-traffic retail environments, failing to implement routine checks for foreseeable hazards, such as spillages, constitutes a breach of the duty of care, particularly where the spill had been present for a considerable time.

Ultimately, the SCA held that a reasonable retailer would have ensured that an employee was available to conduct spot checks of the floors after cleaning, which would have prevented the incident.

Pick 'n Pay Retailers v Williams Supreme Court of Appeal of South Africa - Case No: 238/2024 | [2026] ZASCA 07