Concor Construction (Pty) Ltd v Old Mutual Alternative Risk Transfer Insure Ltd and Others (2025-064595) [2025] ZAGPJHC 472 (16 May 2025)

Concor Construction (Pty) Ltd v Old Mutual Alternative Risk Transfer Insure Ltd and Others (2025-064595) [2025] ZAGPJHC 472 (16 May 2025)

The court found that Concor failed to establish urgency or a prima facie right to the relief sought. The Consortium agreement only binds Concor and Optipower and does not affect the rights of Lombard or OMART under the guarantees. Concor provided the OMART guarantee for its percentage share after the alleged indemnity decision, and there was no evidence of bad faith or fraud in the respondents' actions. The court held that Concor did not specify any irreparable prejudice that could not be remedied in due course. Accordingly, the application was struck for want of urgency, and costs were awarded against Concor.

Citation
[2025] ZAGPJHC 472
Parties
Applicant: Concor Construction (Pty) Ltd; Respondent: Old Mutual Alternative Risk Transfer Insure Ltd; Respondent: Lombard Insurance Company Limited; Respondent: Optipower a trading division of Murray and Roberts Limited; Respondent: Peter van den Steen N.O.; Respondent: Joshua Bruce Cunliffe N.O.; Respondent: Denis Macheya Chifunyise N.O.; Respondent: Wolf Windfarm (RF) (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 May 2025
Case Number
2025-064595
Procedural Posture
Urgent Application / Application for Urgent Interim Interdict Pending Final Determination
Outcome
Application struck for want of urgency, with costs including costs of two counsel.
Judges
S Yacoob
Legal Topics
Interim Interdict, Performance Guarantee, Consortium Agreement, Business Rescue, Urgency, Indemnity
Civil Procedure Commercial and Corporate Interim Interdict Performance Guarantee Consortium Agreement Business Rescue Urgency Indemnity

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Parties

Concor Construction (Pty) Ltd

Applicant

Old Mutual Alternative Risk Transfer Insure Ltd

Respondent

Lombard Insurance Company Limited

Respondent

Optipower a trading division of Murray and Roberts Limited

Respondent

Peter van den Steen N.O.

Respondent

Joshua Bruce Cunliffe N.O.

Respondent

Denis Macheya Chifunyise N.O.

Respondent

Wolf Windfarm (RF) (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Urgent Interim Interdict Pending Final Determination

Legal Issues

  1. 1 Whether the application for urgent interim relief is justified in the circumstances.
  2. 2 Whether Concor has established a prima facie right to interdict OMART from paying Lombard under the guarantee.
  3. 3 Whether Concor will suffer irreparable prejudice if the guarantee is paid.

Ratio Decidendi

The court found that Concor failed to establish urgency or a prima facie right to the relief sought. The Consortium agreement only binds Concor and Optipower and does not affect the rights of Lombard or OMART under the guarantees. Concor provided the OMART guarantee for its percentage share after the alleged indemnity decision, and there was no evidence of bad faith or fraud in the respondents' actions. The court held that Concor did not specify any irreparable prejudice that could not be remedied in due course. Accordingly, the application was struck for want of urgency, and costs were awarded against Concor.

Court Disposition

Application struck for want of urgency, with costs including costs of two counsel.

Orders

  • The application is struck for want of urgency.
  • Costs are awarded against the applicant on scale C, including costs of two counsel.