Raubex/Nodoli Construction Joint Venture v MEC: Free State Department of Police, Roads and Transport (2288/2022) [2023] ZAFSHC 56 (20 February 2023)

Raubex/Nodoli Construction Joint Venture v MEC: Free State Department of Police, Roads and Transport (2288/2022) [2023] ZAFSHC 56 (20 February 2023)

The court held that the adjudicator's award under the NEC3 contract is binding and enforceable as a contractual obligation unless and until revised by the tribunal. The referral of the dispute to arbitration does not suspend the obligation to pay the amounts awarded by the adjudicator. The Supreme Court of Appeal in Framatome v Eskom Holdings SOC Ltd clarified that adjudication awards must be enforced pending arbitration, and the absence of 'promptly' or 'without undue delay' wording in the NEC3 clause does not affect this principle. The respondent did not challenge the adjudicator's jurisdiction or the scope of the award, and therefore the award stands. The application for enforcement...

Citation
[2023] ZAFSHC 56
Parties
Applicant: Raubex/Nodoli Construction Joint Venture; Respondent: MEC: Free State Department of Police, Roads and Transport, Free State Provincial Government N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
20 February 2023
Case Number
2288/2022
Procedural Posture
Urgent Application / Application to Enforce Adjudication Award Pending Arbitration
Outcome
Application granted; adjudicator's award enforced.
Judges
C Reinders
Legal Topics
Construction Contracts, Adjudication Award Enforcement, Dispute Resolution Clauses, Arbitration Pending, Contractual Obligation
Commercial and Corporate Civil Procedure Construction Contracts Adjudication Award Enforcement Dispute Resolution Clauses Arbitration Pending Contractual Obligation

Case Brief

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Parties

Raubex/Nodoli Construction Joint Venture

Applicant

MEC: Free State Department of Police, Roads and Transport, Free State Provincial Government N.O.

Respondent

Procedural Posture

Urgent Application / Application to Enforce Adjudication Award Pending Arbitration

Legal Issues

  1. 1 Whether the adjudication award under the NEC3 contract is binding and enforceable pending arbitration.
  2. 2 Whether the respondent is obliged to pay the amounts awarded by the adjudicator despite referring the dispute to arbitration.
  3. 3 Whether the absence of 'promptly' or 'without undue delay' wording in the NEC3 clause affects enforceability of the adjudicator's decision.

Ratio Decidendi

The court held that the adjudicator's award under the NEC3 contract is binding and enforceable as a contractual obligation unless and until revised by the tribunal. The referral of the dispute to arbitration does not suspend the obligation to pay the amounts awarded by the adjudicator. The Supreme Court of Appeal in Framatome v Eskom Holdings SOC Ltd clarified that adjudication awards must be enforced pending arbitration, and the absence of 'promptly' or 'without undue delay' wording in the NEC3 clause does not affect this principle. The respondent did not challenge the adjudicator's jurisdiction or the scope of the award, and therefore the award stands. The application for enforcement...

Court Disposition

Application granted; adjudicator's award enforced.

Orders

  • The respondent is forthwith to give effect to the adjudication award of Adv. A Gautschi SC dated 5 April 2022 and handed down on 7 April 2022.
  • The respondent is ordered to pay the applicant R14,280,737.40 plus VAT less R8,222,621.10, in other words R8,200,229.91.