Joint Venture Between Aveng (Africa) Pty Ltd and Strabag International GmbH v South African National Roads Agency Soc Ltd and Another (8331/19) [2019] ZAGPPHC 286 (17 May 2019)

Joint Venture Between Aveng (Africa) Pty Ltd and Strabag International GmbH v South African National Roads Agency Soc Ltd and Another (8331/19) [2019] ZAGPPHC 286 (17 May 2019)

The court found that, while it maintains its view that the approach adopted in the initial judgment was correct, there is substance in the applicant's argument that the prima facie right to relief was the legal question regarding the autonomy of construction guarantees. The court acknowledges that, if its approach was incorrect, the application would have succeeded based on the legal pronouncements made. The arguments advanced by the applicant meet the threshold for granting leave to appeal, and the matter warrants consideration by the Supreme Court of Appeal. The first respondent does not oppose the granting of leave in these circumstances.

Citation
[2019] ZAGPPHC 286
Parties
Applicant: Joint Venture Between Aveng (Africa) Pty Ltd and Strabag International GmbH; Respondent: South African National Roads Agency SOC Ltd; Respondent: Lombard Insurance Company Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 May 2019
Case Number
8331/19
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Initial Relief.
Outcome
Leave to appeal granted to the Supreme Court of Appeal.
Judges
TAN Makhuvele
Legal Topics
Construction Guarantees, Force Majeure, Leave to Appeal, Contractual Rights
Commercial and Corporate Civil Procedure Construction Guarantees Force Majeure Leave to Appeal Contractual Rights

Case Brief

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Parties

Joint Venture Between Aveng (Africa) Pty Ltd and Strabag International GmbH

Applicant

South African National Roads Agency SOC Ltd

Respondent

Lombard Insurance Company Limited

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Initial Relief.

Legal Issues

  1. 1 Whether the applicant has a prima facie right to protect the proper implementation of the contract terms.
  2. 2 Whether the court erred in making findings of fact regarding the existence of a dispute and force majeure.
  3. 3 Whether the legal question regarding the autonomy of construction guarantees was dispositive of the application.

Ratio Decidendi

The court found that, while it maintains its view that the approach adopted in the initial judgment was correct, there is substance in the applicant's argument that the prima facie right to relief was the legal question regarding the autonomy of construction guarantees. The court acknowledges that, if its approach was incorrect, the application would have succeeded based on the legal pronouncements made. The arguments advanced by the applicant meet the threshold for granting leave to appeal, and the matter warrants consideration by the Supreme Court of Appeal. The first respondent does not oppose the granting of leave in these circumstances.

Court Disposition

Leave to appeal granted to the Supreme Court of Appeal.

Orders

  • The applicant is granted leave to appeal the whole of the judgment and order to the Supreme Court of Appeal.
  • The costs of this application shall be costs in the appeal.