Superway Construction (Pty) Ltd v City of Tshwane Metropolitan Municipality (46599/2015) [2016] ZAGPPHC 1184 (29 November 2016)

Superway Construction (Pty) Ltd v City of Tshwane Metropolitan Municipality (46599/2015) [2016] ZAGPPHC 1184 (29 November 2016)

The court found that the applicant's inability to perform was self-created, as the strike action resulted from its failure to pay the prescribed wage rates to local labour as required by the contract and statutory determinations. The contract provided mechanisms for resolving ambiguity, including consulting the Engineer, which the applicant failed to utilize. The applicant was aware from the outset that the strike was about disputed wage rates and could have sought clarity or complied with the prescribed rates to avert the strike. The impossibility to perform was therefore not beyond the applicant's control, and the adjudicator was correct in dismissing the claim for extension of time....

Citation
[2016] ZAGPPHC 1184
Parties
Applicant: Superway Construction (Pty) Ltd; Respondent: City of Tshwane Metropolitan Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 November 2016
Case Number
46599/2015
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs.
Judges
N.P Mali
Legal Topics
Contract Interpretation, Extension of Time, Labour Disruption, Self Created Impossibility
Civil Procedure Commercial and Corporate Contract Interpretation Extension of Time Labour Disruption Self Created Impossibility

Case Brief

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Parties

Superway Construction (Pty) Ltd

Applicant

City of Tshwane Metropolitan Municipality

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to an extension of time under clause 42.3.5 of the contract due to labour disruption.
  2. 2 Whether the impossibility to perform was self-created by the applicant's failure to pay prescribed wage rates.
  3. 3 Whether the adjudicator correctly dismissed the applicant's claim for extension of time.

Ratio Decidendi

The court found that the applicant's inability to perform was self-created, as the strike action resulted from its failure to pay the prescribed wage rates to local labour as required by the contract and statutory determinations. The contract provided mechanisms for resolving ambiguity, including consulting the Engineer, which the applicant failed to utilize. The applicant was aware from the outset that the strike was about disputed wage rates and could have sought clarity or complied with the prescribed rates to avert the strike. The impossibility to perform was therefore not beyond the applicant's control, and the adjudicator was correct in dismissing the claim for extension of time....

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.