Sizazonke Electrical CC and Others v Eskom Holdings SOC Limited (222/2018) [2019] ZASCA 36 (29 March 2019)

Sizazonke Electrical CC and Others v Eskom Holdings SOC Limited (222/2018) [2019] ZASCA 36 (29 March 2019)

The court held that Eskom did not repudiate the contracts with Sizazonke. The cancellation and suspension were lawful and justified due to Sizazonke's serious breach of health and safety obligations, which resulted in fatalities and injuries. The termination was effected in accordance with the contractual instruments and procedures, and Sizazonke conceded its breach. The argument that Eskom failed to follow the termination procedure under clause 90 of the NEC 3 contract was rejected, as the clause was intended for the benefit of Eskom and did not require Eskom to give notice to itself. The court found no evidence that Eskom elected not to cancel the contracts or waived its right to do so....

Citation
[2019] ZASCA 36
Parties
Appellant: Sizazonke Electrical CC; Appellant: Roshella Kishun; Appellant: Gert Abraham Cornelius Van Wyk; Respondent: Eskom Holdings SOC Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 March 2019
Case Number
222/2018
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal dismissed with costs; appellant liable for wasted costs of trial postponement, including costs of two counsel.
Judges
Tshiqi, Mbha, Zondi, Davis, Carelse
Legal Topics
Repudiation of Contract, Contractual Damages, Health and Safety Breach, Termination of Contract, Loss of Profits
Commercial and Corporate Delict Repudiation of Contract Contractual Damages Health and Safety Breach Termination of Contract Loss of Profits

Case Brief

Summary, issues, holding and outcome

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Parties

Sizazonke Electrical CC

Appellant

Roshella Kishun

Appellant

Gert Abraham Cornelius Van Wyk

Appellant

Eskom Holdings SOC Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Whether Eskom repudiated the contracts with Sizazonke by suspending it from its database and cancelling existing contracts.
  2. 2 Whether Sizazonke is entitled to damages for loss of profits based on contract or delict.
  3. 3 Whether Eskom followed the correct termination procedure under the NEC 3 Engineering and Construction Contract.

Ratio Decidendi

The court held that Eskom did not repudiate the contracts with Sizazonke. The cancellation and suspension were lawful and justified due to Sizazonke's serious breach of health and safety obligations, which resulted in fatalities and injuries. The termination was effected in accordance with the contractual instruments and procedures, and Sizazonke conceded its breach. The argument that Eskom failed to follow the termination procedure under clause 90 of the NEC 3 contract was rejected, as the clause was intended for the benefit of Eskom and did not require Eskom to give notice to itself. The court found no evidence that Eskom elected not to cancel the contracts or waived its right to do so....

Court Disposition

Appeal dismissed with costs; appellant liable for wasted costs of trial postponement, including costs of two counsel.

Orders

  • The appeal is dismissed with costs.
  • The appellant is liable to pay the costs of the postponement of the trial in October 2016, including the costs of two counsel.