Steve Biko Foundation v Frese NO and Another (A5008/2017) [2018] ZAGPJHC 446 (7 March 2018)

Steve Biko Foundation v Frese NO and Another (A5008/2017) [2018] ZAGPJHC 446 (7 March 2018)

The appeal succeeded because the relief sought by the applicant was to make the adjudicator's award an order of court, not to enforce a contractual obligation or obtain payment. The contract distinguished between an award and enforcement of contractual obligations. The adjudicator's award was not final, as arbitration had not been held and the award was subject to the outcome of arbitration. The applicant did not lay the necessary factual basis for enforcement of contractual obligations, and the court a quo erred in granting relief not sought or pleaded. Proper procedure requires that parties be given notice and opportunity to address any altered claim. Accordingly, the application was...

Citation
[2018] ZAGPJHC 446
Parties
Appellant: Steve Biko Foundation; Respondent: Jorg Rainer Frese NO; Respondent: Rainbow Construction (Pty) Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 March 2018
Case Number
A5008/2017
Procedural Posture
Civil Appeal / Appeal From Judgment of Mahalelo J in the Court a Quo
Outcome
Appeal upheld; application dismissed with costs.
Judges
SNI Mokose, CG Lamont, MA Makume
Legal Topics
Enforcement of Adjudicator Award, Arbitration Proceedings, Contractual Obligations, Business Rescue, Costs Award
Commercial and Corporate Civil Procedure Enforcement of Adjudicator Award Arbitration Proceedings Contractual Obligations Business Rescue Costs Award

Case Brief

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Parties

Steve Biko Foundation

Appellant

Jorg Rainer Frese NO

Respondent

Rainbow Construction (Pty) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment of Mahalelo J in the Court a Quo

Legal Issues

  1. 1 Whether an adjudicator's award may be made an order of court prior to finalisation of arbitration proceedings.
  2. 2 Whether the applicant sought enforcement of a contractual obligation or merely to make the award an order of court.
  3. 3 Whether the court a quo erred in granting relief not sought by the applicant.

Ratio Decidendi

The appeal succeeded because the relief sought by the applicant was to make the adjudicator's award an order of court, not to enforce a contractual obligation or obtain payment. The contract distinguished between an award and enforcement of contractual obligations. The adjudicator's award was not final, as arbitration had not been held and the award was subject to the outcome of arbitration. The applicant did not lay the necessary factual basis for enforcement of contractual obligations, and the court a quo erred in granting relief not sought or pleaded. Proper procedure requires that parties be given notice and opportunity to address any altered claim. Accordingly, the application was...

Court Disposition

Appeal upheld; application dismissed with costs.

Orders

  • The application is dismissed with costs.