Radon Projects (Pty) Ltd v N V Properties (Pty) Ltd and Another (528/12) [2013] ZASCA 83; [2013] 3 All SA 615 (SCA); 2013 (6) SA 345 (SCA) (31 May 2013)

Radon Projects (Pty) Ltd v N V Properties (Pty) Ltd and Another (528/12) [2013] ZASCA 83; [2013] 3 All SA 615 (SCA); 2013 (6) SA 345 (SCA) (31 May 2013)

The Supreme Court of Appeal held that the contractor's revised claims, submitted after practical completion and based on new information, constituted disputes arising out of the agreement and were properly referable to arbitration. The court rejected the employer's argument that the arbitrator lacked jurisdiction because the initial claims had been finally disposed of during construction, finding that the current claims were distinct and not precluded by earlier decisions. The court further clarified that whether a dispute is resolved by adjudication or arbitration depends on when it is submitted for resolution, not when it arises. The arbitrator is empowered to consider the claims, and...

Citation
[2013] ZASCA 83
Parties
Appellant: Radon Projects (Pty) Ltd; Respondent: N V Properties (Pty) Ltd; Respondent: Gary Stephen Myburgh
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 May 2013
Case Number
528/12
Procedural Posture
Civil Appeal / Appeal From Eastern Cape High Court, Grahamstown
Outcome
Appeal upheld; application dismissed with costs, including costs of two counsel where employed.
Judges
Nugent, Leach, Pillay, Erasmus, Saldulker
Legal Topics
Arbitration Agreement, Jurisdiction of Arbitrator, Construction Contracts, Principal Building Agreement, Dispute Resolution Procedure
Commercial and Corporate Civil Procedure Arbitration Agreement Jurisdiction of Arbitrator Construction Contracts Principal Building Agreement Dispute Resolution Procedure

Case Brief

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Parties

Radon Projects (Pty) Ltd

Appellant

N V Properties (Pty) Ltd

Respondent

Gary Stephen Myburgh

Respondent

Procedural Posture

Civil Appeal / Appeal From Eastern Cape High Court, Grahamstown

Legal Issues

  1. 1 Whether the arbitrator had jurisdiction to consider the contractor's revised claims submitted after practical completion.
  2. 2 Whether disputes arising before practical completion must be resolved by adjudication rather than arbitration.
  3. 3 Whether the principal agent's decisions on initial claims were final and binding, precluding arbitration.

Ratio Decidendi

The Supreme Court of Appeal held that the contractor's revised claims, submitted after practical completion and based on new information, constituted disputes arising out of the agreement and were properly referable to arbitration. The court rejected the employer's argument that the arbitrator lacked jurisdiction because the initial claims had been finally disposed of during construction, finding that the current claims were distinct and not precluded by earlier decisions. The court further clarified that whether a dispute is resolved by adjudication or arbitration depends on when it is submitted for resolution, not when it arises. The arbitrator is empowered to consider the claims, and...

Court Disposition

Appeal upheld; application dismissed with costs, including costs of two counsel where employed.

Orders

  • The appeal is upheld with costs.
  • The order of the court below is set aside and substituted with an order dismissing the application with costs.