Withinshaw Properties (Pty) Ltd. v Dura Construction Company (SA) (Pty) Ltd. (318/82) [1984] ZASCA 67 (29 May 1984)

Withinshaw Properties (Pty) Ltd. v Dura Construction Company (SA) (Pty) Ltd. (318/82) [1984] ZASCA 67 (29 May 1984)

The Supreme Court of Appeal held that the reference to Dura Cape in the certificate was a misnomer and did not affect Dura's entitlement to payment under the contract, as Dura Cape acted as agent for Dura and all parties treated Dura Cape as such throughout the project. The certificate was a final certificate within the meaning of the contract, and the accompanying letter from the architects did not qualify or alter the amount due or the finality of the certificate. The suggestion to withhold R30,000 was directed to the employer and did not affect the contractor's rights. Furthermore, no formal dispute had crystallized under the arbitration clause, as there was no written decision by the...

Citation
[1984] ZASCA 67
Parties
Appellant: Withinshaw Properties (Pty) Ltd; Respondent: Dura Construction Company (SA) (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 May 1984
Case Number
318/82
Procedural Posture
Civil Appeal / Appeal From Trial Court Judgment
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Jansen, Trengove, Viljoen, Nicholas, Galqut
Legal Topics
Building Contract, Final Certificate, Agency, Ultra Vires, Arbitration Clause
Commercial and Corporate Civil Procedure Building Contract Final Certificate Agency Ultra Vires Arbitration Clause

Case Brief

Summary, issues, holding and outcome

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Parties

Withinshaw Properties (Pty) Ltd

Appellant

Dura Construction Company (SA) (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Judgment

Legal Issues

  1. 1 Whether Dura Construction Company (SA) (Pty) Ltd had title to sue on the architects' certificate.
  2. 2 Whether the certificate issued was a final certificate within the meaning of the building contract.
  3. 3 Whether the architects were legally entitled to issue the certificate in the face of a dispute regarding defective waterproofing.

Ratio Decidendi

The Supreme Court of Appeal held that the reference to Dura Cape in the certificate was a misnomer and did not affect Dura's entitlement to payment under the contract, as Dura Cape acted as agent for Dura and all parties treated Dura Cape as such throughout the project. The certificate was a final certificate within the meaning of the contract, and the accompanying letter from the architects did not qualify or alter the amount due or the finality of the certificate. The suggestion to withhold R30,000 was directed to the employer and did not affect the contractor's rights. Furthermore, no formal dispute had crystallized under the arbitration clause, as there was no written decision by the...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.