Entsha Henra CC v Sol Plaatje Municipality and Another (410/2015) [2017] ZANCHC 61 (20 October 2017)

Entsha Henra CC v Sol Plaatje Municipality and Another (410/2015) [2017] ZANCHC 61 (20 October 2017)

Upon a proper interpretation of clause 10 of the General Conditions of Contract and the Contract Data, the contract did not provide for adjudication to the exclusion of arbitration and court proceedings. The scheme of clause 10 envisages adjudication as a first-tier dispute resolution mechanism, with arbitration or court proceedings available as second-tier forums for review of the adjudicator's decision. The striking through of references to court and arbitration in the Contract Data did not amount to a clear and unequivocal waiver of the right to review the adjudicator's decision. The absence of an explicit election between arbitration and court proceedings does not deprive the parties...

Citation
[2017] ZANCHC 61
Parties
Plaintiff: Entsha Henra CC; Defendant: The Sol Plaatje Municipality; Defendant: MVD Kalahari
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
20 October 2017
Case Number
410/2015
Procedural Posture
Civil Trial / Rule 33(4) Separation of Issues; Interpretation of Contract Dispute Resolution Clause
Outcome
The question posed in terms of Rule 33(4) is answered in the negative; adjudication is not the exclusive dispute resolution mechanism and the adjudicator's decision is not final to the exclusion of review by a court.
Judges
Olivier
Legal Topics
Contract Interpretation, Dispute Resolution Clauses, Adjudication, Arbitration, Court Review of Adjudicator, Contra Proferentem
Commercial and Corporate Civil Procedure Contract Interpretation Dispute Resolution Clauses Adjudication Arbitration Court Review of Adjudicator Contra Proferentem

Case Brief

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Parties

Entsha Henra CC

Plaintiff

The Sol Plaatje Municipality

Defendant

MVD Kalahari

Defendant

Procedural Posture

Civil Trial / Rule 33(4) Separation of Issues; Interpretation of Contract Dispute Resolution Clause

Legal Issues

  1. 1 Whether the contract provided for adjudication as the exclusive and final dispute resolution mechanism, excluding arbitration and court proceedings.
  2. 2 Whether the adjudicator's decision is final and binding, or subject to review by a court or arbitrator.

Ratio Decidendi

Upon a proper interpretation of clause 10 of the General Conditions of Contract and the Contract Data, the contract did not provide for adjudication to the exclusion of arbitration and court proceedings. The scheme of clause 10 envisages adjudication as a first-tier dispute resolution mechanism, with arbitration or court proceedings available as second-tier forums for review of the adjudicator's decision. The striking through of references to court and arbitration in the Contract Data did not amount to a clear and unequivocal waiver of the right to review the adjudicator's decision. The absence of an explicit election between arbitration and court proceedings does not deprive the parties...

Court Disposition

The question posed in terms of Rule 33(4) is answered in the negative; adjudication is not the exclusive dispute resolution mechanism and the adjudicator's decision is not final to the exclusion of review by a court.

Orders

  • It is held that, upon a proper interpretation of the contract, it did not provide for adjudication to the exclusion of arbitration and court proceedings, and the adjudicator's decision is therefore not final in the sense of excluding review by a court.
  • The plaintiff is ordered to pay the first defendant's costs herein.