Tek-cent Glass & Aluminium (Pty) Ltd v Belo & Kies Construction (Pty) Ltd (16580/2021) [2022] ZAGPPHC 126 (22 February 2022)

Tek-cent Glass & Aluminium (Pty) Ltd v Belo & Kies Construction (Pty) Ltd (16580/2021) [2022] ZAGPPHC 126 (22 February 2022)

The court found that the JBCC subcontract agreement expressly requires immediate compliance with an adjudicator's award unless set aside by arbitration. The respondent's notice of dissatisfaction was delivered outside the stipulated ten working days and thus did not suspend the obligation to comply. The respondent's reliance on tacit or implied terms was rejected due to the non-variation clause in the agreement. The respondent failed to take reasonable steps to initiate arbitration and instead engaged in conduct aimed at delaying payment. The adjudicator's award remains binding and enforceable. The respondent's answering affidavit was filed late without condonation, and no substantive...

Citation
[2022] ZAGPPHC 126
Parties
Applicant: Tek-cent Glass & Aluminium (Pty) Ltd; Respondent: Belo & Kies Construction (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 February 2022
Case Number
16580/2021
Procedural Posture
Urgent Application / Application to Enforce Adjudication Award
Outcome
Application granted; adjudication award enforced against the respondent.
Judges
Mbongwe
Legal Topics
Enforcement of Adjudication Award, Construction Contracts, Jbcc Subcontract Agreement, Notice of Dissatisfaction, Arbitration Procedure
Civil Procedure Commercial and Corporate Enforcement of Adjudication Award Construction Contracts Jbcc Subcontract Agreement Notice of Dissatisfaction Arbitration Procedure

Case Brief

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Parties

Tek-cent Glass & Aluminium (Pty) Ltd

Applicant

Belo & Kies Construction (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application to Enforce Adjudication Award

Legal Issues

  1. 1 Whether the adjudication award is enforceable against the respondent despite the notice of dissatisfaction.
  2. 2 Whether the respondent's notice of dissatisfaction was timeously delivered in terms of the subcontract agreement.
  3. 3 Whether the respondent's opposition based on alleged tacit or implied terms and jurisdictional objections is sustainable.

Ratio Decidendi

The court found that the JBCC subcontract agreement expressly requires immediate compliance with an adjudicator's award unless set aside by arbitration. The respondent's notice of dissatisfaction was delivered outside the stipulated ten working days and thus did not suspend the obligation to comply. The respondent's reliance on tacit or implied terms was rejected due to the non-variation clause in the agreement. The respondent failed to take reasonable steps to initiate arbitration and instead engaged in conduct aimed at delaying payment. The adjudicator's award remains binding and enforceable. The respondent's answering affidavit was filed late without condonation, and no substantive...

Court Disposition

Application granted; adjudication award enforced against the respondent.

Orders

  • The respondent is ordered to forthwith give effect to the adjudication award handed down on 21 February 2021 by Advocate Lee Harding.
  • The respondent is ordered to pay the applicant R908,047.44 (including VAT).