David Emerkwuru Civil and Building Construction CC v MEC Department of Public Works (Provincial Government) North West Province (1746/2011) [2012] ZANWHC 52 (24 May 2012)

David Emerkwuru Civil and Building Construction CC v MEC Department of Public Works (Provincial Government) North West Province (1746/2011) [2012] ZANWHC 52 (24 May 2012)

The court found that the dispute resolution clause in the building contract did not preclude the plaintiff from approaching the court after mediation failed, and thus the court had jurisdiction. However, the plaintiff's claim was not for a liquidated amount in money as required for summary judgment. The amount claimed was not based on an agreed sum nor capable of mere calculation, as the necessary certifications and supporting documentation were lacking, and the mediator's recommendations did not specify the quantum. The ascertainment of the sum due would require further enquiry into the nature and extent of the work and the reasonableness of the charges, making it unsuitable for summary...

Citation
[2012] ZANWHC 52
Parties
Plaintiff: David Emerkwuru Civil & Building Construction CC; Defendant: MEC for Department of Public Works (Provincial Government) North West Province
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
24 May 2012
Case Number
1746/2011
Procedural Posture
Summary Judgment Application / Application for Summary Judgment; Interlocutory Stage
Outcome
Application for summary judgment dismissed; costs awarded against the applicant.
Judges
N. Gutta
Legal Topics
Summary Judgment, Liquidated Amount, Building Contract Dispute, Jurisdiction, Mediation and Arbitration
Civil Procedure Commercial and Corporate Summary Judgment Liquidated Amount Building Contract Dispute Jurisdiction Mediation and Arbitration

Case Brief

Summary, issues, holding and outcome

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Parties

David Emerkwuru Civil & Building Construction CC

Plaintiff

MEC for Department of Public Works (Provincial Government) North West Province

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment; Interlocutory Stage

Legal Issues

  1. 1 Whether the court has jurisdiction to hear the matter despite the mediation clause in the building contract.
  2. 2 Whether the plaintiff's claim is for a liquidated amount in money as required for summary judgment.
  3. 3 Whether the plaintiff complied with contractual requirements for certification of the claimed amount.

Ratio Decidendi

The court found that the dispute resolution clause in the building contract did not preclude the plaintiff from approaching the court after mediation failed, and thus the court had jurisdiction. However, the plaintiff's claim was not for a liquidated amount in money as required for summary judgment. The amount claimed was not based on an agreed sum nor capable of mere calculation, as the necessary certifications and supporting documentation were lacking, and the mediator's recommendations did not specify the quantum. The ascertainment of the sum due would require further enquiry into the nature and extent of the work and the reasonableness of the charges, making it unsuitable for summary...

Court Disposition

Application for summary judgment dismissed; costs awarded against the applicant.

Orders

  • The application for summary judgment is dismissed.
  • The applicant is ordered to pay the costs.