Emfuleni Local Municipality v Tau Ya Mariri Transport and General Services CC (2012/29984) [2013] ZAGPJHC 28 (21 February 2013)

Emfuleni Local Municipality v Tau Ya Mariri Transport and General Services CC (2012/29984) [2013] ZAGPJHC 28 (21 February 2013)

The court held that the adjudicator's award is contractually binding and must be implemented by the applicant, including procuring the engineer's payment certificate and making payment to the respondent. The requirement for the engineer's certificate is an administrative step, not a precondition to payment, and the applicant is obliged to take all necessary steps to comply with the award. The absence of a direct contractual relationship between the applicant and the engineer does not relieve the applicant of its obligation to implement the award. The court found no bar to payment and granted the respondent's counter-application for immediate implementation of the adjudicator's decision.

Citation
[2013] ZAGPJHC 28
Parties
Applicant: Emfuleni Local Municipality; Respondent: Tau Ya Mariri Transport and General Services CC; Third Party: Engcor Consulting Engineers CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
21 February 2013
Case Number
2012/29984
Procedural Posture
Urgent Application / Counter Application for Immediate Implementation of Adjudicator's Award After Withdrawal of Main Application for Referral to Arbitration.
Outcome
Counter-application granted. Applicant ordered to implement the adjudicator's award within specified timeframes.
Judges
FHD Van Oosten
Legal Topics
Construction Adjudication, Enforcement of Adjudicator Award, Contractual Obligation, Interpretation of Contractual Terms
Civil Procedure Commercial and Corporate Construction Adjudication Enforcement of Adjudicator Award Contractual Obligation Interpretation of Contractual Terms

Case Brief

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Parties

Emfuleni Local Municipality

Applicant

Tau Ya Mariri Transport and General Services CC

Respondent

Engcor Consulting Engineers CC

Third Party

Procedural Posture

Urgent Application / Counter Application for Immediate Implementation of Adjudicator's Award After Withdrawal of Main Application for Referral to Arbitration.

Legal Issues

  1. 1 Whether the applicant is contractually obliged to implement the adjudicator's award, including procuring the engineer's payment certificate and making payment to the respondent.
  2. 2 Whether the rider requiring delivery of the engineer's certificate is enforceable under the adjudication agreement.
  3. 3 Whether the absence of a contractual relationship between the applicant and the engineer bars implementation of the adjudicator's order.

Ratio Decidendi

The court held that the adjudicator's award is contractually binding and must be implemented by the applicant, including procuring the engineer's payment certificate and making payment to the respondent. The requirement for the engineer's certificate is an administrative step, not a precondition to payment, and the applicant is obliged to take all necessary steps to comply with the award. The absence of a direct contractual relationship between the applicant and the engineer does not relieve the applicant of its obligation to implement the award. The court found no bar to payment and granted the respondent's counter-application for immediate implementation of the adjudicator's decision.

Court Disposition

Counter-application granted. Applicant ordered to implement the adjudicator's award within specified timeframes.

Orders

  • The applicant is ordered to implement, within 7 days of the date of this order, the adjudicator's award dated 12 December 2011 by procuring delivery of the payment certificate from the engineer to both parties.
  • The applicant must pay the respondent R2,342,832.74 within 28 days after receipt of the payment certificate.