Group Five Construction Pty Ltd v Fikeni A.O. (43891/2019) [2024] ZAGPJHC 448 (7 May 2024)

Group Five Construction Pty Ltd v Fikeni A.O. (43891/2019) [2024] ZAGPJHC 448 (7 May 2024)

The applicant failed to demonstrate reasonable prospects of success for leave to appeal. The final payment certificate in this matter expressly identified defects and did not certify completion of the works in accordance with the contract. Payment under the certificate is not due until the applicant remedies the defects as required by the contract. The applicant's argument that the certificate is conclusive and payment must be made regardless of defects is unsustainable, as the contract and established legal principles require defects to be remedied before payment. The assertion that the judgment would cause crisis in the construction industry is unfounded. The requirements for leave to...

Citation
[2024] ZAGPJHC 448
Parties
Applicant: Group Five Construction (Pty) Ltd. (In business Rescue); Respondent: Dr Somadoda Patrick Mayibongwe Fikeni A.O.
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 May 2024
Case Number
43891/2019
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Claim at First Instance
Outcome
Application for leave to appeal dismissed with costs.
Judges
Noko
Legal Topics
Leave to Appeal, Construction Contracts, Payment Certificates, Final Completion, Contractual Obligations
Civil Procedure Commercial and Corporate Leave to Appeal Construction Contracts Payment Certificates Final Completion Contractual Obligations

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Parties

Group Five Construction (Pty) Ltd. (In business Rescue)

Applicant

Dr Somadoda Patrick Mayibongwe Fikeni A.O.

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Claim at First Instance

Legal Issues

  1. 1 Whether the applicant has demonstrated reasonable prospects of success for leave to appeal.
  2. 2 Whether the final payment certificate under the principal building agreement obliges the employer to pay despite identified defects.
  3. 3 Whether payment can be withheld pending rectification of defects identified in the final certificate.

Ratio Decidendi

The applicant failed to demonstrate reasonable prospects of success for leave to appeal. The final payment certificate in this matter expressly identified defects and did not certify completion of the works in accordance with the contract. Payment under the certificate is not due until the applicant remedies the defects as required by the contract. The applicant's argument that the certificate is conclusive and payment must be made regardless of defects is unsustainable, as the contract and established legal principles require defects to be remedied before payment. The assertion that the judgment would cause crisis in the construction industry is unfounded. The requirements for leave to...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.