Mokwana v Pieterse Home Builders (Eiendoms) Bpk. (603/90) [1992] ZASCA 145 (15 September 1992)

Mokwana v Pieterse Home Builders (Eiendoms) Bpk. (603/90) [1992] ZASCA 145 (15 September 1992)

The court held that the respondent failed to allege facts in its summons that would entitle it to a payment certificate under clause 14.1 of the contract. The appellant was not obliged to make the initial funds available or to authorise their release, as those rights had already been ceded to the respondent. The contractual mechanism for payment certificates only applied to funds held by the attorneys after the initial amount was exhausted, and required written authorisation from both parties. The respondent did not allege that the appellant refused or failed to authorise the release of such funds, nor that the preconditions for invoking clause 14.1 were met. Consequently, the respondent...

Citation
[1992] ZASCA 145
Parties
Appellant: J Mokwana; Respondent: Pieterse Home Builders (Eiendoms) Beperk
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
15 September 1992
Case Number
603/90
Procedural Posture
Civil Appeal / Appeal From Summary Judgment in Magistrate's Court, With Leave Granted After Petition
Outcome
Appeal upheld with costs; summary judgment set aside.
Judges
Hoexter, Hefer, Nienaber, Van den Heever, Harms
Legal Topics
Summary Judgment, Construction Contract, Payment Certificate, Contractual Obligations
Civil Procedure Commercial and Corporate Summary Judgment Construction Contract Payment Certificate Contractual Obligations

Case Brief

Summary, issues, holding and outcome

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Parties

J Mokwana

Appellant

Pieterse Home Builders (Eiendoms) Beperk

Respondent

Procedural Posture

Civil Appeal / Appeal From Summary Judgment in Magistrate's Court, With Leave Granted After Petition

Legal Issues

  1. 1 Whether the respondent established a valid cause of action for summary judgment based on the payment certificate.
  2. 2 Whether the appellant had any obligation to make the funds available or to authorise their release under the contract.
  3. 3 Whether the respondent was entitled to invoke clause 14.1 for a payment certificate.

Ratio Decidendi

The court held that the respondent failed to allege facts in its summons that would entitle it to a payment certificate under clause 14.1 of the contract. The appellant was not obliged to make the initial funds available or to authorise their release, as those rights had already been ceded to the respondent. The contractual mechanism for payment certificates only applied to funds held by the attorneys after the initial amount was exhausted, and required written authorisation from both parties. The respondent did not allege that the appellant refused or failed to authorise the release of such funds, nor that the preconditions for invoking clause 14.1 were met. Consequently, the respondent...

Court Disposition

Appeal upheld with costs; summary judgment set aside.

Orders

  • The appeal succeeds with costs.
  • Paragraph 1 of the order of the court a quo is amended to read: 'The application for summary judgment is dismissed with costs.'