South Africa Case Law

Rodpaul Construction (Pty) Ltd t/a Rods Construction v MEC: KwaZulu-Natal Provincial Department of Public Works (599/2023P)

Rodpaul Construction (Pty) Ltd t/a Rods Construction v MEC: KwaZulu-Natal Provincial Department of Public Works (599/2023P) [2023] ZAKZPHC 84 (18 August 2023)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

599/2023P

Judge

Nicholson AJ

The court held that the adjudicator's determination under the NEC3 contract is binding and enforceable pending arbitration, regardless of the respondent's notification of dissatisfaction or referral to a tribunal. Public policy requires that contracts freely and voluntarily entered into must be honoured, and the respondent's fear of non-repayment if the award is overturned at arbitration does not justify withholding payment. The respondent failed to incorporate any contractual clause allowing for a stay of payment pending arbitration and cannot now rely on public policy to amend the contract.…

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• Adjudication Award Enforcement
• Nec3 Contract
• Public Policy In Contracts
• Sanctity Of Contract
• Piecemeal Litigation
• Set Off

Raubex/Nodoli Construction Joint Venture v MEC: Free State Department of Police, Roads and Transport (2288/2022)

Raubex/Nodoli Construction Joint Venture v MEC: Free State Department of Police, Roads and Transport (2288/2022) [2023] ZAFSHC 56 (20 February 2023)

Court

Free State High Court, Bloemfontein

Case number

2288/2022

Judge

C Reinders

The court held that the adjudicator's award under the NEC3 contract is binding and enforceable as a contractual obligation unless and until revised by the tribunal. The referral of the dispute to arbitration does not suspend the obligation to pay the amounts awarded by the adjudicator. The Supreme Court of Appeal in Framatome v Eskom Holdings SOC Ltd clarified that adjudication awards must be enforced pending arbitration, and the absence of 'promptly' or 'without undue delay' wording in the NEC3 clause does not affect this principle. The respondent did not challenge the adjudicator's jurisdic…

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• Construction Contracts
• Adjudication Award Enforcement
• Dispute Resolution Clauses
• Arbitration Pending
• Contractual Obligation

Confact Core Construction CC v JLK Construction (Pty) Ltd (7926/20)

Confact Core Construction CC v JLK Construction (Pty) Ltd (7926/20) [2020] ZAWCHC 167 (25 November 2020)

Court

Western Cape High Court, Cape Town

Case number

7926/20

Judge

Kusevitsky

The court found that the JBCC contract provided the applicant with an election between adjudication and arbitration for dispute resolution, and the applicant properly exercised its right to refer the dispute to adjudication after giving notice of disagreement. The respondent's argument that the time for adjudication had lapsed or that only arbitration was available after contract termination was rejected, as the contract language and context did not support such a limitation. The adjudication award is binding and enforceable unless and until set aside by arbitration, and the respondent failed…

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• Construction Contracts
• Adjudication Award Enforcement
• Jbcc Rules
• Dispute Resolution Clauses
• Stay Of Execution
• Arbitration Election

Aveng (Africa) (Proprietary) Limited v Eskom Holdings SOC Limited and Another (19/28187)

Aveng (Africa) (Proprietary) Limited v Eskom Holdings SOC Limited and Another (19/28187) [2020] ZAGPJHC 442 (11 September 2020)

Court

South Gauteng High Court, Johannesburg

Case number

19/28187

Judge

J.J. Reyneke

The High Court ordered Eskom to pay an adjudicated claim amount to Aveng, rejecting Eskom’s argument that Treasury approval and internal processes made payment conditional.

• Specific Performance
• Adjudication Award Enforcement
• Contractual Obligation
• Public Finance Management Act
• Adjudication-award-enforcement
• Specific-performance

Rekhuditse Cleaning and Construction Services CC v Elias Motsoaledi Local Municipality and Another (7460/2019)

Rekhuditse Cleaning and Construction Services CC v Elias Motsoaledi Local Municipality and Another (7460/2019) [2020] ZALMPPHC 52 (11 June 2020)

Court

Limpopo High Court, Polokwane

Case number

7460/2019

Judge

GC Muller

The court found that the first respondent's unilateral letter of 3 April 2017 did not lawfully terminate or suspend the appointment of the second respondent as adjudicator, as the CIDB Procedure document requires joint action and prescribed procedures for such termination. The applicant's attorney's response did not constitute acquiescence or waiver of rights. Neither party invoked the relevant clauses to appoint a replacement adjudicator or set aside the award. The final adjudication award dated 26 April 2017 was valid and enforceable, as it was delivered before any replacement adjudicator w…

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• Construction Industry Development Board
• Adjudication Award Enforcement
• Contract Of Mandate
• Declaratory Relief
• Res Judicata
• Performance Guarantee