Coombe N.O v Premier of the Province of KwaZulu Natal (2144/2000) [2015] ZAKZDHC 62 (31 July 2015)

Coombe N.O v Premier of the Province of KwaZulu Natal (2144/2000) [2015] ZAKZDHC 62 (31 July 2015)

The court found that clause 27 of the contract does not impose a duty on the contractor to refer disputes to the Director-General before instituting action. The absence of referral is not a bar to the plaintiff's right to sue. Regarding prescription, the court held that the debts were not due until the final account was supplied, as required by clause 23(4) of the contract. The defendant failed to plead the date of inception of prescription, and payments were still being made as late as May 1997. The final delivery certificate was issued in November 1997, and until the final account was presented, prescription could not run. Both special pleas were found to lack merit and were dismissed.

Citation
[2015] ZAKZDHC 62
Parties
Plaintiff: Colin Arnold Victor Coombe N.O; Defendant: Premier of the Province of KwaZulu-Natal
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
31 July 2015
Case Number
2144/2000
Procedural Posture
Civil Trial / Special Pleas Adjudicated Prior to Merits
Outcome
Both the defendant's first and second special pleas are dismissed.
Judges
Sishi
Legal Topics
Special Plea, Prescription Act, Contractual Dispute Resolution, Building Contract, Extension of Time, Final Account
Civil Procedure Commercial and Corporate Special Plea Prescription Act Contractual Dispute Resolution Building Contract Extension of Time Final Account

Case Brief

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Parties

Colin Arnold Victor Coombe N.O

Plaintiff

Premier of the Province of KwaZulu-Natal

Defendant

Procedural Posture

Civil Trial / Special Pleas Adjudicated Prior to Merits

Legal Issues

  1. 1 Whether the defendant's first special plea, based on non-referral of disputes to the Director-General under clause 27 of the contract, should be upheld.
  2. 2 Whether the defendant's second special plea, based on prescription under the Prescription Act 68 of 1969, should be upheld.

Ratio Decidendi

The court found that clause 27 of the contract does not impose a duty on the contractor to refer disputes to the Director-General before instituting action. The absence of referral is not a bar to the plaintiff's right to sue. Regarding prescription, the court held that the debts were not due until the final account was supplied, as required by clause 23(4) of the contract. The defendant failed to plead the date of inception of prescription, and payments were still being made as late as May 1997. The final delivery certificate was issued in November 1997, and until the final account was presented, prescription could not run. Both special pleas were found to lack merit and were dismissed.

Court Disposition

Both the defendant's first and second special pleas are dismissed.

Orders

  • The defendant's first special plea is dismissed.
  • The defendant's second special plea is dismissed.