Multiminds 186 CC t/a Cooling Solutions v E'tsho Civils (Pty) Ltd and Another (3023/2019) [2020] ZAFSHC 40 (28 February 2020)

Multiminds 186 CC t/a Cooling Solutions v E'tsho Civils (Pty) Ltd and Another (3023/2019) [2020] ZAFSHC 40 (28 February 2020)

The court found that the First Respondent, as principal agent under the JBCC contract, is contractually obliged to issue and certify payment certificates for the Applicant's work. The non-joinder of Mecan Engineering Services, Quantum Built Environmental Consultants, and Machabachaba Construction is not fatal, as these parties do not have a direct and substantial interest in the relief sought, nor will they be prejudiced by the judgment. The Applicant's entitlement to payment certificates arises from the JBCC contract and the cession agreements, which provide for direct payment by the Second Respondent upon certification. The delays and variation orders were attributable to the...

Citation
[2020] ZAFSHC 40
Parties
Applicant: Multiminds 186 CC t/a Cooling Solutions; Respondent: E'Tsho Civils (Pty) Ltd; Respondent: MEC for Sports, Arts, Culture and Recreation, Free State Province
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 February 2020
Case Number
3023/2019
Procedural Posture
Urgent Application / Opposed Motion for Mandatory Relief
Outcome
Application granted. The First Respondent is ordered to issue and certify payment certificates; costs awarded against the First Respondent.
Judges
Chesiwe
Legal Topics
Payment Certificates, Joint Building Contract Committee, Non Joinder, Specific Performance
Commercial and Corporate Civil Procedure Payment Certificates Joint Building Contract Committee Non Joinder Specific Performance

Case Brief

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Parties

Multiminds 186 CC t/a Cooling Solutions

Applicant

E'Tsho Civils (Pty) Ltd

Respondent

MEC for Sports, Arts, Culture and Recreation, Free State Province

Respondent

Procedural Posture

Urgent Application / Opposed Motion for Mandatory Relief

Legal Issues

  1. 1 Whether the First Respondent is obliged to issue and certify payment certificates under the JBCC contract for the benefit of the Applicant.
  2. 2 Whether non-joinder of certain service providers (Mecan Engineering Services, Quantum Built Environmental Consultants, Machabachaba Construction) is fatal to the application.
  3. 3 Whether the Applicant is entitled to relief compelling the First Respondent to issue payment certificates so that the Second Respondent may pay the Applicant.

Ratio Decidendi

The court found that the First Respondent, as principal agent under the JBCC contract, is contractually obliged to issue and certify payment certificates for the Applicant's work. The non-joinder of Mecan Engineering Services, Quantum Built Environmental Consultants, and Machabachaba Construction is not fatal, as these parties do not have a direct and substantial interest in the relief sought, nor will they be prejudiced by the judgment. The Applicant's entitlement to payment certificates arises from the JBCC contract and the cession agreements, which provide for direct payment by the Second Respondent upon certification. The delays and variation orders were attributable to the...

Court Disposition

Application granted. The First Respondent is ordered to issue and certify payment certificates; costs awarded against the First Respondent.

Orders

  • The First Respondent is ordered to issue and certify or cause to issue and certify payment certificates under contract numbers SCM-INFR 02/2014 (Soutpan), SCM-INFR 03/2014 (Smithfield), and SCM-INFR 04/2014 (Luckhoff) relating to additional work, preliminaries and generals, monthly progress meetings, and transport...
  • The First Respondent is ordered to pay the costs of the application.