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South Africa Case Law

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Commercial And Corporate [2023] ZANCHC 12

Abeinsa EPC Kaxu (Pty) Ltd v Kaxu Solar One (RF) (Pty) Ltd and Another (1791/2022)

Abeinsa EPC Kaxu (Pty) Ltd v Kaxu Solar One (RF) (Pty) Ltd and Another (1791/2022) [2023] ZANCHC 12 (13 January 2023)

Court
Northern Cape High Court, Kimberley
Case number
1791/2022
Judge
Mamosebo

The court found that the performance bond is a demand guarantee, autonomous from the EPC contract. The only requirement for payment under the bond is a bona fide demand stating the contractor’s breach; disputes regarding defects or the need for technical intervention do not restrict Kaxu’s right to call on the bond. Clause 29.9F does not impose a requirement that a defect be established by arbitration before the bond can be called. The applicant failed to establish a clear right to the relief sought, did not substantiate irreparable harm, and did not show the absence of an alternative remedy.…

Source excerpt

  • Performance Guarantees
  • Interim Interdict
  • Contractual Interpretation
  • Demand Bond
  • Underlying Contract Exception
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Commercial And Corporate [2010] ZASCA 15

Kwikspace Modular Buildings Ltd v Sabodala Mining Company Sarl and Another (173/09)

Kwikspace Modular Buildings Ltd v Sabodala Mining Company Sarl and Another (173/09) [2010] ZASCA 15; [2010] 3 All SA 467 (SCA) ; 2010 (6) SA 477 (SCA) (18 March 2010)

Court
Supreme Court of Appeal
Case number
173/09
Judges
Cloete, Lewis, Shongwe, Griesel, Theron

Australian law recognises that a building contract may contain enforceable provisions limiting the right of a beneficiary to present an unconditional performance guarantee, but such limitations must be expressly stated or clearly implied. In this case, GC 5.5 did not require final resolution of disputes before the Principal could present the guarantees, nor did it incorporate a tacit term obliging the Principal to set out the grounds for its demand. The Superintendent's certificate created an enforceable right for the Principal, and the Contractor's failure to pay justified recourse to the gu…

Source excerpt

  • Performance Guarantees
  • Building Contracts
  • Interdicts
  • Contractual Terms
  • Security For Performance
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About this LexChat collection

South Africa decisions are organised by court, judge, legal area and indexed issue so a practitioner can move from a proposition to a citable authority with the surrounding context intact.

Source links and collection timestamps are retained alongside the indexed records.