Motheo Construction Group (Pty) Ltd v University of Mpumalanga (1174/2022) [2023] ZAMPMBHC 38 (12 July 2023)

Motheo Construction Group (Pty) Ltd v University of Mpumalanga (1174/2022) [2023] ZAMPMBHC 38 (12 July 2023)

The court found that the adjudicator was properly appointed in terms of the NEC3 contract, and even if there were procedural defects, the respondent acquiesced to the appointment and the process by noting the appointment and indicating cooperation. The respondent failed to object at the relevant time and only raised objections after the award was made. The referral for adjudication was legitimate, and the respondent had the opportunity to challenge the award but did not do so. The omission of a prayer to make the award an order of court was inadvertent, and the intention was clear from the founding affidavit. The court is reluctant to interfere with arbitral awards and found no grounds to...

Citation
[2023] ZAMPMBHC 38
Parties
Applicant: Motheo Construction Group (Pty) Ltd; Respondent: University of Mpumalanga
Court
Mbombela High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
12 July 2023
Case Number
1174/2022
Procedural Posture
Urgent Application / Application to Enforce Adjudicator's Award as Order of Court
Outcome
Application granted. The adjudicator's award is made an order of court. The respondent is directed to comply with the award and pay the adjudicator's costs and the costs of the application.
Judges
B A Mashile
Legal Topics
Enforcement of Adjudicator Award, Contractual Dispute Resolution, Arbitration Act Section 33, Party Acquiescence, Nec3 Engineering Contract
Civil Procedure Commercial and Corporate Enforcement of Adjudicator Award Contractual Dispute Resolution Arbitration Act Section 33 Party Acquiescence Nec3 Engineering Contract

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Parties

Motheo Construction Group (Pty) Ltd

Applicant

University of Mpumalanga

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the adjudicator was properly appointed in terms of the contract between the parties.
  2. 2 Whether, assuming the adjudicator was unlawfully appointed, the respondent is nonetheless bound by the award due to acquiescence or waiver.
  3. 3 Whether the referral of the dispute was made in accordance with the provisions of the agreement.

Ratio Decidendi

The court found that the adjudicator was properly appointed in terms of the NEC3 contract, and even if there were procedural defects, the respondent acquiesced to the appointment and the process by noting the appointment and indicating cooperation. The respondent failed to object at the relevant time and only raised objections after the award was made. The referral for adjudication was legitimate, and the respondent had the opportunity to challenge the award but did not do so. The omission of a prayer to make the award an order of court was inadvertent, and the intention was clear from the founding affidavit. The court is reluctant to interfere with arbitral awards and found no grounds to...

Court Disposition

Application granted. The adjudicator's award is made an order of court. The respondent is directed to comply with the award and pay the adjudicator's costs and the costs of the application.

Orders

  • The award of the adjudicator is made an order of this court.
  • The respondent is to forthwith comply with the order of the adjudicator dated 6 February 2022.