Frese NO v Steve Biko Foundation (00172/2016) [2016] ZAGPJHC 358 (5 August 2016)

Frese NO v Steve Biko Foundation (00172/2016) [2016] ZAGPJHC 358 (5 August 2016)

The court held that the JBCC agreement's dispute resolution clause is clear and unambiguous: the adjudicator's determination is binding and must be given effect to without delay, even if a notice of dissatisfaction is issued. The respondent's notice does not suspend the obligation to comply, and the respondent failed to take any steps to refer the dispute to arbitration or to overturn the determination. The court found no merit in the argument that enforcement is against public policy or contra bonos mores due to business rescue, as the law provides mechanisms for creditors to protect their interests. The defence of prescription was raised late and cannot be entertained without procedural...

Citation
[2016] ZAGPJHC 358
Parties
Applicant: Jorg Rainer Frese NO; Respondent: Steve Biko Foundation; Respondent: Rainbow Construction (Pty) Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
5 August 2016
Case Number
00172/2016
Procedural Posture
Urgent Application / Application to Enforce Adjudicator's Determination as an Order of Court
Outcome
Application granted. The respondent is ordered to give effect to the adjudicator's determination until revised by arbitration.
Judges
Mahalelo
Legal Topics
Enforcement of Adjudicator Determination, Specific Performance, Business Rescue, Public Policy, Contractual Obligations
Commercial and Corporate Civil Procedure Enforcement of Adjudicator Determination Specific Performance Business Rescue Public Policy Contractual Obligations

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Parties

Jorg Rainer Frese NO

Applicant

Steve Biko Foundation

Respondent

Rainbow Construction (Pty) Limited

Respondent

Procedural Posture

Urgent Application / Application to Enforce Adjudicator's Determination as an Order of Court

Legal Issues

  1. 1 Whether the adjudicator's determination under the JBCC agreement is binding and enforceable as an order of court pending arbitration.
  2. 2 Whether enforcement of the adjudicator's determination is contra bonos mores or against public policy due to the applicant being under business rescue.
  3. 3 Whether the respondent's notice of dissatisfaction affects the obligation to comply with the adjudicator's determination.

Ratio Decidendi

The court held that the JBCC agreement's dispute resolution clause is clear and unambiguous: the adjudicator's determination is binding and must be given effect to without delay, even if a notice of dissatisfaction is issued. The respondent's notice does not suspend the obligation to comply, and the respondent failed to take any steps to refer the dispute to arbitration or to overturn the determination. The court found no merit in the argument that enforcement is against public policy or contra bonos mores due to business rescue, as the law provides mechanisms for creditors to protect their interests. The defence of prescription was raised late and cannot be entertained without procedural...

Court Disposition

Application granted. The respondent is ordered to give effect to the adjudicator's determination until revised by arbitration.

Orders

  • The respondent is ordered to forthwith give effect to the adjudicator's determination handed down on 10 January 2013 and annexed to the notice of motion as X1 and 28 January 2013 annexed to the notice of motion as X2.
  • The order shall endure until such time, if at all, that the said decision of the adjudicator is revised in amicable settlement or an arbitral award.