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[2013] ZAGPJHC 388
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Stefanutti Stocks (Pty) Ltd v S8 Property (Pty) Ltd (20088/2013) [2013] ZAGPJHC 388 (23 October 2013)
REPUBLIC OF SOUTH
AFRICA
IN THE GAUTENG
HIGH COURT
JOHANNESBURG,
LOCAL DIVISION
CASE
NO: 20088/2013
DATE:
23 OCTOBER 2013
In the matter
between
STEFANUTTI STOCKS
(PTY) LTD
...................................
APPLICANT
And
S8 PROPERTY (PTY)
LTD
............................................
RESPONDENT
Coram: WEPENER J
Heard: 22 October
2013
Delivered: 23
October 2013
Summary: Building
agreement – enforceability of adjudicator’s decision by
court prior to final arbitration – a
decision which is binding
on the parties who shall give effect thereto without delay unless and
until it is revised, requires immediate
implementation thereof.
Accounts between the parties may be revised by future dispute
resolution procedures which have no affect
on the interim enforcement
of the adjudicator’s decision – The agreement and the
rules of adjudication allow for enforcement
of the adjudicator’s
decision as a contractual obligation by a court.
J U
D G M E N T
WEPENER J:
[1] The applicant
seeks an order compelling the respondent to comply with its
obligations in terms of a building agreement. The
effect of the order
will be one for specific performance by the respondent by paying
amounts determined by an adjudicator to be
due and payable to the
applicant.
[2] The agreement
between the parties is a standard written agreement utilised in the
building industry – referred to as a
Joint Building Contracts
Committee (‘JBCC’) Services 2000 Principal Building
Agreement (‘the agreement’
or the ‘JBCC
agreement’). Clause 40 of the agreement provides that:
’40.0 DISPUTE
SETTLEMENT
40.1 Should any
disagreement arise between the employer or his principal agent or
agents and the contractor as to any matter arising
out of or
concerning this agreement either party may give notice to the other
to resolve such disagreement.
40.2 Where such
disagreements is not resolved within ten (10) working days of receipt
of such notice it shall be deemed to be a
dispute and shall be
submitted to:
40.2.1 Adjudication
in terms of the edition of the JBCC Rules for Adjudication current at
the time when the dispute is declared.
The adjudicator shall be
appointed in terms of such Rules.
40.2.2 No clause.
40.3 The
adjudicator’s decision shall be binding on the parties who
shall give effect to it without delay unless and until
it is
subsequently revised by an arbitrator in terms of 40.5. Should notice
of dissatisfaction not be given within the period in
terms of 40.4,
the adjudicator’s decision shall become final and binding on
the parties.
40.4 Should either
party be dissatisfied with the decision given by the adjudicator, or
should no decision be given within the period
set out in the Rules,
such party may give notice of dissatisfaction to the other party and
to the adjudicator within ten (10) working
days of receipt of the
decision or, should no decision be given, within ten (10) working
days of expiry of the date by which the
decision was required to be
given.
40.5 A dispute which
is the subject of a notice of dissatisfaction shall be finally
resolved by the arbitrator as stated in the
schedule. Where such
person is unwilling or unable to act, or where no person has been
stated, the arbitrator shall be chosen and
appointed by mutual
agreement within ten (10) working days of such notice, the arbitrator
shall be the person appointed at the
request of either party by the
chairman, or his nominee, of the Association of Arbitrators (Southern
Africa). The adjudicator appointed
in terms of 40.2.1 shall not be
eligible for appointment as the arbitrator.’
[3] The applicant,
being the building contractor, referred a dispute between the parties
to an adjudicator. The adjudicator issued
his decision in terms of
which he determined:
‘3.1 The
Contractor is entitled to be paid the full original preliminaries
value of R2,439,677.98;
3.2 Any adjustment
to the preliminaries, in terms of clause 32.12, must be quantified
using the original preliminaries value of
R2,439,677.98;
3.3 The Contractor
is entitled to recover from the Employer the amount of R94,000.00
(excl. VAT) that has been unlawfully deducted
from the recovery
statement and payment certificate issued by the principal agent;
3.4 The Contractor
is entitled to compensatory interest on all amounts determined to be
owing to it pursuant to this adjudication;
which interest is to
calculated from the date of practical completion, namely 30 July
2012;
3.5 The Employer is,
in terms of Rule 6.4.10 of the JBCC Adjudication Rules, liable in
full for the payment of my fees.’
[4] The respondent,
the employer, contended that it is not obliged to give effect to the
adjudicator’s decision as it had
given notice of its
dissatisfaction therewith pursuant to clauses 40.3 to 40.5 of the
agreement:
[5] Adjudication was
first introduced in the United Kingdom through the Housing Grants
Construction and Regeneration Act 1996 (‘the
Housing Act’).
The Housing Act provides for an accelerated process for deciding
disputes. It provides in particular that
an adjudicator’s
decision may be rejected by either party and submitted to arbitration
but it is provisionally binding on
the parties unless and until
overturned in the subsequent arbitration. The enforcement of an
adjudicator’s decision and the
referral of the dispute to
arbitration is dealt with in England and Wales by a scheme
promulgated as regulation 1998 which is quoted
in the judgment of the
Queen’s Bench Division in Carillion Construction Ltd v
Devonport Royal Dock Yard
[2005] EWHC 778
(TCC) at para 6. The
relevant regulation provides that:
‘The decision
of the adjudicator shall be binding on the parties and they shall
comply with it until the dispute is finally
determined by legal
proceedings, by arbitration…or by agreement between the
parties’.
[6] At para 59 of
Carillion, and discussing the law, the court explained the purpose of
adjudication as follows:
‘It was to
introduce a speedy mechanism for settling disputes in construction
contracts on a provisional interim basis and
requiring the decisions
of adjudicators to be enforced pending final determination of
disputes by arbitration, litigation or agreement.’
In Carillion at para
80 the court found that even errors of procedure, fact or law by the
adjudicator did not constitute defences
to the enforcement of the
adjudicator’s decision.
[7] In South Africa
adjudication has found its way into major construction agreements,
such as the JBCC agreement, and is regulated
contractually. The
purpose, however, of the two procedures and the enforcement of the
adjudicator’s decision are, in my view,
similar.
[8] Eyvind Finsen
The Building Contract - A commentary on the JBCC Agreements, 2 ed p
229 explains the enforcement of the adjudicator’s
decision as
follows:
‘The purpose
of adjudication being the quick, if possible temporary, resolution of
a dispute and the granting of interim relief
to the successful party,
the whole purpose of adjudication would be frustrated if the
successful party was unable to enforce the
determination against the
other party.’
[9] In a recent
judgment of Tubular Holdings (Pty) Ltd v DBT Technologies (Pty) Ltd
(06757/2013) [2013] ZAGPJHC 155 (3 May 2013)
delivered in this
division, DTvR Du Plessis AJ interpreted the following contractual
provision:
‘The decision
shall be binding on both parties who shall promptly give effect to it
unless and until it shall be revised in
an amicable settlement or an
arbitrated award as described below.’
Du Plessis AJ said:
‘[8] The
effect of these provisions is that the decision shall be binding
unless and until it has been revised as provided.
There can be no
doubt that the binding effect of the decision endures, at least,
until it has been so revised. It is clear from
the wording of clause
20.4 that the intention was that a decision is binding on the parties
and only loses its binding effect if
and when it is revised. The
moment the decision is made the parties are required to “promptly”
give effect to it. Given
that a dissatisfied party has 28 days within
which to give his notice of dissatisfaction it follows that the
requirement to give
prompt effect will precede any notice of
dissatisfaction.
[9] The final
sentence of clause 20.4 (4), requiring the contractor to continue to
proceed with the works, underscores the intention
of the parties to
the effect that life goes on and is not interrupted by a notice of
dissatisfaction.
[10] A dissatisfied
party may elect to wait 28 days before giving his notice of
dissatisfaction. However, this will have no effect
on his obligation
to give effect to the decision which has to happen promptly on the
giving of that decision. In the event where
no notice of
dissatisfaction has been given within the prescribed time, the
decision becomes final and binding on both parties.
[11] The distinction
between the situation in clause 20.4 (4), where the decision shall be
binding on both parties and clause 20.4
(7), where it becomes final
and binding upon both parties is significant: in the first instance
it is binding but of an interim
nature (but the obligation to perform
in terms of this decision is final); in the second it is binding but
now finally so.
[12] Where no notice
of dissatisfaction had been given the decision becomes final and
binding. Clause 20.6 (1) is concerned only
with a decision in respect
of which a notice of dissatisfaction has in fact been given. In other
words, this is a situation envisaged
in clause 20.4 (4): the decision
is binding on both parties who must promptly give effect to it unless
and until it has been revised
in an arbitral award as referred to in
clause 20.6 (1). Clause 20.6 (1) obviously only arises if there had
indeed been a notice
of dissatisfaction.
[13] Thus the notice
of dissatisfaction does not in any way detract from the obligation of
the parties to give prompt effect to
the decision until such time, if
at all, it is revised in arbitration. The notice of dissatisfaction
does, for these reasons, not
suspend the obligation to give effect to
the decision. The party must give prompt effect to the decision once
it is given.
[14] The scheme of
these provisions is as follows: the parties must give prompt effect
to a decision. If a party is dissatisfied
he must nonetheless live
with it but must deliver his notice of dissatisfaction within 28 days
failing which it will become final
and binding. If he has given his
notice of dissatisfaction he can have the decision reviewed in
arbitration. If he is successful
the decision will be set aside. But
until that has happened the decision stands and he has to comply with
it.
[15] In the
unreported decision of Esor Africa (Pty) Ltd/Franki Africa (Pty) Ltd
JV and Bombela Civils JV (Pty) Ltd, SGHC case no.
12/7442, the
parties had referred a dispute to the DAB in terms of clause 20.4 of
the FIDIC Conditions of Contract. The DAB gave
its decision which was
in favour of the contractor. The employer refused to make payment in
terms of the decision relying, inter
alia, on the fact that it had
given a notice of dissatisfaction and the contractor approached the
Court for an order compelling
compliance with the decision.
[16] The matter came
before Spilg J who commented that he found the wording of the
relevant contractual provisions to be clear and
that their effect is
that whilst the DAB decision is not final
“the
obligation to make payment or otherwise perform under it is…”
(at para 12 of the judgment)
[17] The court found
the key to comprehending the intention and purpose of the DAB process
to be the fact that neither payment nor
performance can be withheld
when the parties are in dispute (at para 12):
“the DAB
process ensures that the quid pro quo for continued performance of
the contractor’s obligations even if dissatisfied
with the DAB
decision which it is required to give effect to is the employer’s
obligation to make payment in terms of a DAB
decision and that there
will be a final reconciliation should either party be dissatisfied
with the DAB decision…”
[18] The court
further held at para 14 that the respondent was not entitled to
withhold payment of the amount determined by the
adjudicator and that
he
“is precluded
by the terms of the provisions of clause 20 (and in particular
clauses 20.4 and 20.6) from doing so pending
the outcome of the
Arbitration.”
[19] Mr Burman SC,
who appeared for the respondent, criticized the Bombela-decision on
the basis that the court did not refer to
any authority in the
judgment. In this regard the learned Judge said the following:
“I have
considered a number (of) local and foreign cases that were dealt with
in argument. In my view this is a straight forward
case based on the
reading of the contract and the underlying rationale for requiring
the immediate implementation of the DAB decision.”
[20] I am bound to
give effect to the judgment in Bombela
“unless the
Court is completely satisfied that such previous decision is wrong,
and has been arrived at by some manifest oversight
or
misunderstanding, and that a palpable mistake has been made.”
[R v Phillips Dairy (Pty) Ltd 1955 (4) 120 (T) at 122C]
[21] I cannot make
such a finding. Far from being “clearly wrong” the
Bombela judgement is, in my view, correct: the
Court had regard to
the relevant authorities applicable to the construction of contracts
and then looked at the wording of the
contract and concluded, quite
correctly, that such wording is clear. That was the correct approach.
[22] The decision in
Bombela is supported by a number of judgments, both here and abroad,
dealing with similar provisions in different
standard forms of
construction contracts which point clearly to a practice relating to
the immediate enforcement of an adjudicator’s
decision leaving
it to the dissatisfied party to refer the decision to arbitration in
order to set it aside; until so set aside
it remains binding.
[23] Evidence of
this approach is relevant on two bases: firstly, it assists in the
interpretation of the relevant contractual provisions,
and secondly
it is material which would have been present in the mind of the
parties when they contracted and thus admissible as
evidence of
background circumstances.
[24] Some of the
relevant cases are the following:
24.1 Stocks and
Stocks (Cape) (Pty) Ltd v Gordon and others NNO
1993 (1) SA 156
(T):
24.1.1 The contract
in this matter, which appears to have been an ad-hoc agreement,
(which had been concluded during the 1980’s)
referred to
mediation as opposed to adjudication. It provided that the parties
could obtain the opinion of a mediator but if dissatisfied,
it could
refer it to arbitration. It provided that
“The opinion
of the mediator shall be binding upon the parties and shall be given
effect to by them until the said opinion
is overruled in any
subsequent arbitration or litigation.”
24.1.2 Van Dijkhorst
J disagreed with the previous dissenting decision in Blue Circle
Projects (Pty) Ltd v Klerksdorp Municipality
1990 (1) SA 469
(T) as
being clearly wrong and could find no objection to giving effect to
an agreement in terms of which interim payments are
to be made which
may later be followed by an adjustment of account and a claim for
repayment of what has been paid should the opinion
be set aside in
arbitration: after all, that is the effect of the agreement.
24.2 Freeman NO and
another v Eskom Holdings Limited [(43346/09) [2010] ZAGPJHC 137 (24
April 2010); (2011 JDR 0226 (GSJ);
[2010] JOL 25357
(GSJ)]:
24.2.1 In this
matter Kathree-Setiloane AJ (as she then was) considered the NEC form
of contract, which provides for adjudication
and for notification by
the dissatisfied party to a tribunal who has the power to settle the
dispute referred to it. It also provides
that the adjudicator’s
decision is binding upon the parties “unless and until”
revised by the tribunal and is
enforceable as a matter of contractual
obligation between the parties and not as an arbitral award.
24.2.2 In this
matter the contractor had obtained an adjudicator’s decision in
its favour. It issued summons against the employer
based on this
decision. The employer entered appearance whereupon the contractor
applied for summary judgment.
24.2.3 Summary
judgment was resisted, inter alia, on the grounds that the employer
had given notice of dissatisfaction. The Court
held that this did not
constitute a bona fide defence to the claim as the adjudicator’s
decision is final and binding unless
and until revised by the
tribunal.’ [at paras 16 and 17]
‘24.3 Basil
Read (Pty) Ltd v Regent Devco (Pty) Ltd (41108/09) [201] ZAGPJC 75 (9
March 2010):
24.3.1 Clause 40 of
the JBCC Principal Building Agreement deals with dispute resolution
and allows a referral of a dispute to an
adjudicator. Any party
dissatisfied with the adjudicator’s decision may give notice of
dissatisfaction within a stipulated
time and may then refer the
dispute to arbitration. The arbitrator shall have the power to reopen
any previous decision including
that of the adjudicator. It
stipulates, however, that
“the
adjudicator’s decision shall be binding upon the parties who
shall give effect to it without delay unless and until
it is
subsequently revised by an arbitrator”.
24.3.2 In this
matter, which was also decided in this division, Mokgoatlheng J
construed these provisions as imposing an obligation
on the
dissatisfied party to give effect to the decision without delay
unless and until it is subsequently set aside by the arbitrator.
The
dissatisfied party’s remedy is to procure set-off or adjustment
in the following payment certificates should he succeed
in having the
decision set aside after he had performed.
24.4 The United
Kingdom:
24.4.1 Here the
matter is now dealt with by statute which is to the same effect as
the clauses referred to above.
24.4.2 In commenting
on the statutory scheme the Court of Appeal remarked in paragraph 87
[of Carillion] that
“In short, in
the overwhelming majority of cases, the proper course for the party
who is unsuccessful in an adjudication under
the scheme must be to
pay the amount that he has been ordered to pay by the adjudicator. If
he does not accept the adjudicator’s
decision as correct
(whether on the facts or in law), he can take legal or arbitration
proceedings in order to establish the true
position. To seek to
challenge the adjudicator’s decision on the ground that he has
exceeded his jurisdiction or breached
the rules of natural justice
(save in the plainest cases) is likely to lead to a substantial waste
of time and expense –
as, we suspect, the costs incurred in the
present case will demonstrate only too clearly.”
24.4.3 It seems that
the underwhelming minority which the Court of Appeal had in mind is
where the adjudicator simply answered the
wrong question rendering
his decision a nullity. However, this is not the respondent’s
complaint in this case.
[25] I therefore
find that the terms of the relevant contractual provisions are
perfectly clear: the parties are obliged to promptly
give effect to a
decision by the DAB. The issue of a notice of dissatisfaction does
not in any way detract from this obligation;
whilst such a notice is
necessary where the dissatisfied party wishes to have the decision
revised it does not affect that decision;
it simply sets in motion
the procedure in which the decision may be revised. But until
revised, the decision binds the parties
and they must give prompt
effect thereto.
[26] Any room for
doubt regarding the interpretation of these provisions was laid to
rest by the judgment of this court in Bombela.
This court has
declared that a notice of dissatisfaction does not excuse performance
by the party giving such notice from giving
effect to the decision in
the interim.
[27] The wording of
the provisions in question is entirely consistent with other forms of
contract and are indicative of a practice
currently existent in the
construction industry to the effect that dissatisfied parties are
required to give prompt effect to the
decisions of adjudicators in
question despite their notices of dissatisfaction; those notices
merely allow a possible revision
of these decisions without affecting
their interim binding nature.’
[10] I am in
respectful agreement with the reasoning of Du Plessis AJ. The words
‘without delay’ and ‘unless and
until’
reflect an intention that effect be given to the adjudicator’s
decision until it is set aside by an arbitrator.
In the Basil Read
matter, Mokgoatlheng J dealt with a clause in similar terms as the
clause now under consideration when he concluded
that the
adjudicator’s decision was enforceable, despite a future
arbitration. Spilg J said in Bombela at paras 11 and 12:
‘The DAB
decision is not final but the adjudication to make payment or other
performance under it is …The key to comprehending
the
intention and purpose of the DAB process is that neither payment nor
performance can be withheld when the parties are in dispute.’
[11] The terms of
the Rules for Adjudication (‘Rules’), to which both
parties were bound, were common cause. Adjudication
Rule 7.1.4 reads:
‘7.1 The
adjudicator’s written determination of the dispute shall:
7.1.1 …
7.1.2 …
7.1.3 …
7.1.4 Be binding on
the parties unless and until such determination is overturned or
reviewed in whole or in part by arbitration
in terms of clause 40.5
of the agreement.’
In addition, in
clause 7.2.2 the Rules provide that ‘either party may apply to
court for the enforcement of the determination
as a contractual
obligation’.
The determination
that can be referred to court for enforcement, is the decision of the
adjudicator.
[12] The respondent
relied on a passage in Blue Circle Projects (Pty) Ltd v Klerksdorp
Municipality
1990 (1) SA 469
(T) where it was held that the decision
of the adjudicator being interim in nature, cannot be enforced as
only a final award can
be enforced by a court. However, van Dijkhorst
J said in Stocks & Stocks at 160E:
‘The statement
by the learned Judge that only a final arbitration award will be
enforced by an order of Court is no doubt
correct as a general
proposition. Compare Britstown Municipality v Beunderman (Pty)
Ltd1967 (3) SA 154 (C). It must surely, however,
be qualified to
exclude instances where the contract clearly stipulates that an
amount is due and payable. Ubi ius ibi remedium.
I have therefore
come to the conclusion that the decision in Blue Circle Projects
(Pty) Ltd v Klerksdorp Municipality (supra) is
clearly wrong and
decline to follow it.’
The wording of the
agreement between the parties in this matter is that the decision is
binding and must be implemented without
delay and the Britstown
Municipality case is distinguishable on that basis. It is also
distinguishable as a result of the fact
that no contractual right to
enforce the decision (prior to further decisions being taken) was
included in the agreement considered
in Britstown Municipality. Nor
did it contain a clause such as clause 7.2.2 of the Rules in this
matter.
[13] In the
circumstances, having regard to the clear wording of the agreement
and Rules, the decision of the adjudicator is an
enforceable
contractual obligation, at least until it has been revised, if
revised by an arbitrator.
[14] The argument on
behalf of the respondent that, because it sent a notice of
dissatisfaction with the decision of the adjudicator,
the issue is
not finally resolved and cannot be enforced by a court, is
consequently without merit.
[15] The
respondent’s further argument was that the reference to
arbitration would not interrupt or suspend the works carried
out in
terms of the agreement and thus frustrate the purpose behind Clause
40 of the agreement to obtain a speedy resolution of
a dispute and to
avoid delay in the works. This is so as a result of the fact that the
agreement had been terminated, the applicant
is no longer engaged in
the works and any interim payments will not be followed by an
adjustment of accounts. The argument relies
on a passage of van
Dijkhorst J in the Stocks & Stocks matter at 160B-D where the
learned judge said:
‘In principle,
I have no objection to giving effect to an agreement in terms of
which interim payments are to be made which
may later be followed by
an adjustment of accounts and a claim for repayment of what has been
paid. There is nothing contra bonos
mores in such arrangement. In
fact, in the instant case it is a practical solution to ensure
continuity of work in progress. The
fact that my order will lead to
execution, should the respondents not comply, is to be expected. The
fact that there cannot be
an appeal or a rescission solely because an
arbitrator has later arrived at a conclusion which differs from the
opinion of the
mediator does not close the door to the respondents.
They will be credited in the final accounts or can reclaim the
amounts now
paid under the order of Court upon a new cause of action
based upon the subsequent arbitrator's award or, if there is
litigation,
the order there made.’
(My underlining)
The argument on
behalf of the respondent overlooks the underlined portion of the
judgment. The doors are not closed for the respondent
who can take
whatever steps may be necessary, should it be successful in the
arbitration proceedings. The passage in Carillion
quoted in para 6
above does not hold that the finalisation or completion of the
contract is a cut-off date for the implementation
of the
adjudicator’s decision. None of the decided matters referred to
herein suggest that the coming to an end of the works
or contract,
has the affect of preventing any further adjustment of accounts.
Parties can resolve disputes and settle accounts
regardless of the
completion of the contract or the termination of the agreement.
[16] Having regard
to the purpose of the provisions of the agreement by introducing a
speedy settling of disputes in construction
agreements on a
provisional, interim basis, I can find no reason not to follow the
judgment in Tubular Holdings, which is in harmony
with the decisions
of Spilg J in Bombela and Mokgoatlheng J in Basil Read. The purpose
of the policy to implement the adjudicator’s
decision is also
to obviate the tactical creation of disputes with a view to the
postponement of liability. See Ramsden The Law
of Arbitration p59.
This is so, despite the termination of the agreement.
[17]
Kathree-Setiloane AJ (as she then was) said in Freeman at para 16 and
17 as follows:
‘[16] Eskom’s
second defence is that, on 20 November 2006 and 4 December 2006
respectively, it notified Transdeco, that
it intended to refer the
first and second decisions of the adjudicator to arbitration, in
terms of the contract and, that the arbitration
of these disputes is
pending. Eskom thus denies that it is obliged to comply with the
first and second decisions of the adjudicator
pending arbitration. I
am of the view that this would not constitute a bona fide defence
that is good in law, as the parties expressly
agreed, in terms of
Core Clause 90.2 of the contract, that an adjudicator’s
‘decision is final and binding unless and
until revised by the
tribunal”.
[17] The
adjudicator’s decision, therefore, remains binding and
enforceable until revised in the final determination by an
arbitrator. Mr Kemack referred me to the United Kingdom case of
Bouygues (UK) Limited v Dahl-Jensen (UK) Limited
[2000] BLR 49
[TCC]
at 55, para. 35, which bears out this conclusion. This matter, of the
Queen’s Bench Division, Technology and Construction
Court
(“TCC”), concerned a dispute arising from a sub-contract,
which provided for dispute resolution by adjudication
pursuant to the
Rules of the CIC Model Adjudication Procedure (2nd edition) which
provided that:
“1.The object
of adjudication is to reach a fair, rapid and inexpensive decision
upon a dispute arising under the contract
and this procedure shall be
interpreted accordingly.
...
4. The Adjudicator’s
decision shall be binding until the dispute is finally determined by
legal proceedings, by arbitration
(if the contract provides for
arbitration or the parties otherwise agree to arbitration) or by
agreement.
5. The parties shall
implement the Adjudicator’s decision without delay whether or
not the dispute is to be referred to legal
proceedings or
arbitration.
...”
Having regard to
these Rules, Justice Dyson held as follows:
“the purpose
of the scheme is to provide a speedy mechanism for settling disputes
in construction contracts on a provisional
interim basis, and
requiring the decisions of adjudicators to be enforced pending final
determination of disputes by arbitration,
litigation or agreement,
whether those decisions are wrong in point of law and fact. It is
inherent in the scheme that injustices
will occur, because from time
to time, adjudicators will make mistakes. Sometimes these mistakes
will be glaringly obvious and
disastrous in their consequences for
the losing party. The victims of mistakes will usually be able to
recoup their losses by subsequent
arbitration or litigation, and
possibly even by a subsequent arbitration.” (See also: C&B
Scene Concept Design v Isobars
Limited [2002] BLR (CA) 93 at 98,
para. 23)’
[18] Spilg J said in
Bombela at par 12:
‘The parties’
position may be altered by the outcome of the eventual arbitration
which is a lengthier process and there
may be a refund ordered of
monies paid or an interest readjustment if too little was decided by
the DAB.’
[19] In the
circumstances, the argument that interim payments may not be followed
by an adjustment of accounts, must fail.
[20] The rate of
interest, applicable on any outstanding amounts, was common cause
between the parties and the amounts claimed by
the applicant pursuant
to the decision of the adjudicator were not disputed.
[21] In the
circumstances, as neither of the defences can succeed, I grant the
following order:
21.1 The respondent
is ordered to comply with the decision of the adjudicator as
contained in annexure SS08 to the founding affidavit
in the
application forthwith by making payment of the amounts of:
21.1.1
R1,689,677.98;
21.1.2
R1,269,810.00;
21.1.3 R94,000.00;
21.1.4 R188,726.31;
21.1.5 R43,500.00;
21.1.6 Interest on
the aforesaid amounts calculated at 8% monthly compounded from 1 May
2013 to date of payment;
21.2 The respondent
is to pay the costs of the application.
WEPENER J
JUDGE OF THE
GAUTENG HIGH COURT
JOHANNEBURG LOCAL
DIVISION
APPEARANCES
COUNSEL FOR
APPLICANT: L.J van Tonder
(Heads
drawn by P.H.J van Vuuren)
Instructed by Tiefenthaler Attorneys
COUNSEL FOR
RESPONDENT: J.J Bitter
Instructed by Daryl Ackerman Attorneys