Group Five Construction (Pty) Limited v Minister of Water Affairs and Forestry (39161/05) [2010] ZAGPPHC 36 (5 May 2010)

Group Five Construction (Pty) Limited v Minister of Water Affairs and Forestry (39161/05) [2010] ZAGPPHC 36 (5 May 2010)

The court held that, under the contract and its amendments, the plaintiff was required to follow the dispute resolution procedure before instituting court proceedings. Once the plaintiff gave notice of its intention to refer the claims to court, the impediment to litigation was removed and the claims became enforceable. Prescription therefore began to run no later than the date of such notice. The submission of claims to the engineer did not interrupt prescription, as it did not constitute service of a legal process commencing legal proceedings under section 15(1) of the Prescription Act. The court found no evidence of a 'referral agreement' that extended the notice period for claim C...

Citation
[2010] ZAGPPHC 36
Parties
Plaintiff: Group Five Construction (Pty) Limited; Defendant: Minister of Water Affairs and Forestry
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 May 2010
Case Number
39161/05
Procedural Posture
Civil Trial / Separated Issue on Prescription Decided Under Rule 33(4)
Outcome
Defendant's special plea of prescription upheld; claims A, B, C and D dismissed.
Judges
B.R. Southwood
Legal Topics
Prescription Act, Construction Contracts, Dispute Resolution Clauses, Contractual Interpretation, Interruption of Prescription
Civil Procedure Commercial and Corporate Prescription Act Construction Contracts Dispute Resolution Clauses Contractual Interpretation Interruption of Prescription

Case Brief

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Parties

Group Five Construction (Pty) Limited

Plaintiff

Minister of Water Affairs and Forestry

Defendant

Procedural Posture

Civil Trial / Separated Issue on Prescription Decided Under Rule 33(4)

Legal Issues

  1. 1 Whether the plaintiff's claims A-D became enforceable and payable on the dates when notice was given to refer the matters to court, or only upon final approval of the works.
  2. 2 Whether the running of prescription was interrupted by service of claims on the engineer under the contract.
  3. 3 Whether a 'referral agreement' existed that extended the period for giving notice to refer claim C (para 22(c)) to court.

Ratio Decidendi

The court held that, under the contract and its amendments, the plaintiff was required to follow the dispute resolution procedure before instituting court proceedings. Once the plaintiff gave notice of its intention to refer the claims to court, the impediment to litigation was removed and the claims became enforceable. Prescription therefore began to run no later than the date of such notice. The submission of claims to the engineer did not interrupt prescription, as it did not constitute service of a legal process commencing legal proceedings under section 15(1) of the Prescription Act. The court found no evidence of a 'referral agreement' that extended the notice period for claim C...

Court Disposition

Defendant's special plea of prescription upheld; claims A, B, C and D dismissed.

Orders

  • The defendant's special plea of prescription in respect of claims A, B, C and D is upheld.
  • Claims A, B, C and D are dismissed.