South Africa Case Law

Lohan Civils (Pty) Ltd v Tokologo Local Municipality (2676/2019)

Lohan Civils (Pty) Ltd v Tokologo Local Municipality (2676/2019) [2020] ZAFSHC 104 (12 June 2020)

Court

Free State High Court, Bloemfontein

Case number

2676/2019

Judge

Opperman

The court found that although there was no factual dispute on the papers, the grounds for leave to appeal and the arguments presented revealed that a severe dispute of fact may exist regarding the authority to issue the payment certificate and the inclusion of variation orders and contract price adjustments. The applicant's remedy may have been to cancel the contract rather than rely on the engineer's certificate. Given the potential for another court to reach a different conclusion and the possibility that the dispute of fact was too severe for resolution on affidavit, leave to appeal was gr…

Source excerpt

• Leave To Appeal
• Contractual Certificates
• Variation Orders
• General Conditions Of Contract
• Dispute Of Facts

Lohan Civils (Pty) Ltd v Tokologo Local Municipality (2676/2019)

Lohan Civils (Pty) Ltd v Tokologo Local Municipality (2676/2019) [2020] ZAFSHC 20 (14 February 2020)

Court

Free State High Court, Bloemfontein

Case number

2676/2019

Judge

Opperman

The High Court dismissed an application to enforce a construction payment certificate, finding the certificate was contractually invalid and the Department should have been joined.

• Payment Certificate
• Motion Proceedings
• Joinder
• Arbitration Clause
• Variation Orders
• Payment-certificates

Trade First 2124 CC v ENM Trading CC (3133/2019)

Trade First 2124 CC v ENM Trading CC (3133/2019) [2019] ZAFSHC 201 (31 October 2019)

Court

Free State High Court, Bloemfontein

Case number

3133/2019

Judge

P.J. Loubser

The High Court dismissed an application to provisionally liquidate ENM Trading CC, finding that liquidation was not just and equitable in the circumstances.

• Provisional Liquidation
• Just And Equitable Winding Up
• Demand For Payment
• Company Debt
• Variation Orders
• Provisional-liquidation

Buffalo City Metropolitan Municipality v THM Engineers EL CC and Others (CA344/2018)

Buffalo City Metropolitan Municipality v THM Engineers EL CC and Others (CA344/2018) [2019] ZAECGHC 91 (20 September 2019)

Court

Eastern Cape High Court, Grahamstown

Case number

CA344/2018

Judges

E Revelas, MJ Lowe, NP Jaji

The court held that the respondents did not comply with the mandatory claims procedure set out in Clause 48 of the General Conditions of Contract for Construction Works (2004). The procedure requires a written claim, proper record of facts, and a ruling by the engineer, none of which occurred. The unique position of the first respondent as both engineer and contractor did not excuse non-compliance, and the court found that the contestation process is essential to protect the employer's interests. Mere notification or submission of a variation order was insufficient. Waiver or estoppel was not…

Source excerpt

• Construction Contracts
• Variation Orders
• Extension Of Time
• Fiduciary Duties
• Mediation Costs

Future Rustic Contruction (Pty) Ltd v Spillers Waterfront (Pty) Ltd and Another (9120/2010)

Future Rustic Contruction (Pty) Ltd v Spillers Waterfront (Pty) Ltd and Another (9120/2010) [2011] ZAKZDHC 23; 2011 (5) SA 506 (KZD) (27 May 2011)

Court

Kwazulu-Natal High Court, Durban

Case number

9120/2010

Judge

K. Swain

High Court remitted an incomplete arbitration award for reconsideration, directing the arbitrator to provide specified amounts and interest details.

• Arbitration Act Section 32
• Remittal Of Award
• Incomplete Arbitral Award
• Interest On Award
• Variation Orders
• Arbitration-act-section-32

2C Projects CC v Labour Recruitment Specialist CC (7000/2007)

2C Projects CC v Labour Recruitment Specialist CC (7000/2007) [2008] ZAKZHC 59 (22 August 2008)

Court

High Courts - Kwazulu Natal

Case number

7000/2007

Judge

Ntshangase

The High Court granted provisional sentence for R524,996.01 based on an architect’s final payment certificate and held the contract allowed variation and escalation.

• Provisional Sentence
• Building Contract
• Variation Orders
• Liquid Document
• Contractual Escalation
• Provisional-sentence

LTA Construction Ltd. v Minister of Public Works and Land Affairs (180/92)

LTA Construction Ltd. v Minister of Public Works and Land Affairs (180/92) [1993] ZASCA 149; 1994 (1) SA 153 (AD); (29 September 1993)

Court

Supreme Court of Appeal

Case number

180/92

Judges

Nestadt, Hoexter, Milne, Nicholas, Kriegler

The court refused condonation and dismissed an appeal over whether a contractor could recover extra time-related costs caused by variation orders.

• Construction Contracts
• Variation Orders
• Time Related Costs
• Contractual Interpretation
• Construction-contracts
• Variation-orders

Imprefed (Pty) Ltd. v National Transport Commission (13/91)

Imprefed (Pty) Ltd. v National Transport Commission (13/91) [1993] ZASCA 36; 1993 (3) SA 94 (AD); [1993] 2 All SA 179 (A) (22 March 1993)

Court

Supreme Court of Appeal

Case number

13/91

Judges

Joubert, E M Grosskopf, Kumleben, Nienaber, Van Coller

The Supreme Court of Appeal held that the appellant's claims for additional remuneration, loss of productivity, and overheads were not sustainable under the contract. The contract was a rate and measurement contract, and the agreed rates or contract rates governed all remuneration for work done, including variations and extra work. The appellant's attempt to claim additional compensation based on fairness, more onerous conditions, or the Engineer's recommendations was rejected, as the contract provided exclusive remedies and mechanisms for payment. The pleadings did not permit reliance on con…

Source excerpt

• Construction Contracts
• Variation Orders
• Remuneration Under Contract
• Pleading Precision
• Damages For Breach
• Quantification Of Claims

Van Streepen & Germs (Pty) Ltd. v Government of the Republic of South Africa (113/89)

Van Streepen & Germs (Pty) Ltd. v Government of the Republic of South Africa (113/89) [1990] ZASCA 127 (1 October 1990)

Court

Supreme Court of Appeal

Case number

113/89

Judges

Joubert, Nestadt, F H Grosskopf, Nicholas, Nienaber

The court held that Variation Order 4 was a routine administrative document issued in terms of clause 3(iii) of the contract and was not intended by the respondent to function as an offer to vary the contractual basis of payment. There was no evidence of animus contrahendi or consensus between the parties to substitute fair and reasonable remuneration for the agreed rates. The appellant failed to establish, on a balance of probabilities, that VO4 constituted a contractual variation. The acceptance of VO4 by the appellant did not amount to acceptance of a new contract or variation of the payme…

Source excerpt

• Construction Contracts
• Variation Orders
• Animus Contrahendi
• Contractual Consensus
• Remuneration Basis

Melmoth Town Board v Marius Mostert (Pty) Ltd. (375/1982)

Melmoth Town Board v Marius Mostert (Pty) Ltd. (375/1982) [1984] ZASCA 71; [1984] 2 All SA 412 (A) ; 1984 (3) SA 718 (A) (30 May 1984)

Court

Supreme Court of Appeal

Case number

375/1982

Judges

Jansen, Miller, Viljoen, Van Heerden, Galgut

The court held that clause 54 allowed upward or downward contract-price adjustment for variations, but the engineer wrongly used it to alter item rates.

• Construction Contracts
• Variation Orders
• Contractual Interpretation
• Engineer Certification
• Quantum Meruit
• Construction-contracts