Murray & Roberts Ltd v Alstom S&E Africa (Pty) Ltd (2104/18) [2019] ZAGPJHC 300; [2019] 4 All SA 495 (GJ); 2020 (1) SA 204 (GJ) (2 September 2019)

Murray & Roberts Ltd v Alstom S&E Africa (Pty) Ltd (2104/18) [2019] ZAGPJHC 300; [2019] 4 All SA 495 (GJ); 2020 (1) SA 204 (GJ) (2 September 2019)

The court found that the adjudicator's decision is final and binding under the terms of the subcontract, as no valid notice of dissatisfaction was given within the prescribed period. The respondent's claim of impossibility of performance was not raised before the adjudicator and is not supported by the facts. The obligations imposed by the adjudicator are capable of performance, as the decision allows for appropriate testing and the provision of test records, not necessarily certificates from the original manufacturer. The court held that the respondent cannot avoid compliance by interpreting the decision with undue rigour or by raising impossibility belatedly. The equities favour...

Citation
[2019] ZAGPJHC 300
Parties
Applicant: Murray & Roberts Ltd; Respondent: Alstom S&E Africa (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
2 September 2019
Case Number
2104/18
Procedural Posture
Specific Performance Application / Final Judgment
Outcome
Application granted. The adjudicator's decision is made an order of court and the respondent is ordered to comply.
Judges
Unterhalter
Legal Topics
Specific Performance, Adjudication Enforcement, Impossibility of Performance, Construction Contracts
Commercial and Corporate Civil Procedure Specific Performance Adjudication Enforcement Impossibility of Performance Construction Contracts

Case Brief

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Parties

Murray & Roberts Ltd

Applicant

Alstom S&E Africa (Pty) Ltd

Respondent

Procedural Posture

Specific Performance Application / Final Judgment

Legal Issues

  1. 1 Whether the adjudicator's decision is final and binding and enforceable by the court.
  2. 2 Whether the obligations imposed by the adjudicator's decision are impossible of performance.
  3. 3 Whether the court should exercise its discretion to refuse specific performance due to alleged impossibility.

Ratio Decidendi

The court found that the adjudicator's decision is final and binding under the terms of the subcontract, as no valid notice of dissatisfaction was given within the prescribed period. The respondent's claim of impossibility of performance was not raised before the adjudicator and is not supported by the facts. The obligations imposed by the adjudicator are capable of performance, as the decision allows for appropriate testing and the provision of test records, not necessarily certificates from the original manufacturer. The court held that the respondent cannot avoid compliance by interpreting the decision with undue rigour or by raising impossibility belatedly. The equities favour...

Court Disposition

Application granted. The adjudicator's decision is made an order of court and the respondent is ordered to comply.

Orders

  • The respondent is obliged to comply with the decision of the adjudicator dated 01 September 2017.
  • The respondent must provide the applicant with traceability and material certificates (with an authentic test record) in compliance with EN10204 Type 3.1 certification for all free issue materials for the erection of the absorbers in respect of Unit 3 at Kusile.