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[2016] ZAGPJHC 99
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Divine Inspiration Trading 130 (Pty) Limited v Aveng Greenaker-LTA (Pty) Ltd and Others (2015/10455) [2016] ZAGPJHC 99 (13 May 2016)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2015/10455
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
DIVINE
INSPIRATION TRADING 130 (PTY) LIMITED
Applicant
And
AVENG
GREENAKER-LTA (PTY) LTD
First
Respondent
ASSOCIATION
OF ARBITRATORS OF
SOUTH
AFRICA
Second
Respondent
MR. C
BINNINGTON
Third
Respondent
JUDGE B
JAMMY
Fourth Respondent
JUDGE I
SCHWARTZMAN
Fifth Respondent
JUDGMENT
RATSHIBVUMO
AJ
:
1.
Introduction:
The applicant seeks an order in the
following terms:
1.
“
Declaring that the agreement between the
Applicant and the First Respondent, in so far as it subsists and/or
subsisted, made provision
for an ex-post facto enforcement of the
rights contained therein relating to dispute resolution;
2.
Declaring that the agreement between the parties
contemplated that in the absence of, or upon the expiry of the
Dispute Adjudication
Board, either party is entitled to refer any
dispute arising out of the agreement is liable to be referred to
arbitration by Association
of Arbitrators of South Africa;
3.
Declaring that the Second Respondent is empowered,
alternatively obliged and further alternatively bound to arbitrate
upon the dispute
referred to it by the Applicant during January of
2014;
4.
Costs;
5.
Further and/or alternative relief.”
2.
The application is opposed by the
First and the Second Respondent. The First Respondent submits that
paragraphs 1 and 2 of the Notice
of Motion seek a declaration
confirming a clear wording of a contract between it and the
Applicant; and it’s as such unnecessary.
The Second Respondent
further avers that the court can only refer the dispute to the
arbitrator if one is presented to it; but
the Applicant failed to
present a dispute which it could refer to the arbitrator as
suggested. The Second Respondent is opposed
to paragraph 3 of the
Notice of Motion in that being an association, it has no
locus
standi
to hear
arbitration matters, but it recommends or allocate arbitrators to
parties with disputes, and it cannot interfere with the
findings made
by the arbitrators.
3.
Background
:
It is common cause that the Applicant, an engineering construction
company, trading as El Shaddai Engineering Services was appointed
by
the First Respondent, on 05 October 2010 to complete and construct
the Sub-Contract works and remedy any defects in conformity
with the
provision of the Sub-Contract Agreement and the Main Contract. The
main contract was concluded between Eskom (Pty) Ltd
and several
contractors including the First Respondent, for the national key
strategic energy project at the Medupi Power Station.
The value of
the sub-contracted works the Applicant was appointed to do was R59
919 849.00. It is further common cause that the
Red Book conditions
of contract issued by the
Federation
Internationale des Ingenieurs-Conseils
(the
FIDIC conditions) published in 1999, as amended by the sub-contract
agreement; was applicable between the Applicant and the
First
Respondent.
4.
Clause 20 of the FIDIC conditions
provide for the appointment of the Dispute Adjudication Board (the
DAB) which would deal with
disputes between the parties. Further
provisions are to the effect that in case the parties or one of them
is not happy with the
decision of the DAB, the matter shall be
settled by arbitration. Clause 20.8 upon which the Applicant relies,
provides that if
a dispute arises between the parties in connection
with, or arising out of, the Contract or the execution of the Works,
and there
is no DAB in place, whether by reason of expiry of the
DAB’s appointment or otherwise; clause 20. 4 and 20. 5 shall
not apply;
and the dispute may be referred directly to
arbitration.
[1]
It is common cause that up to this
date, the DAB has not been appointed. It is the First Respondent’s
contention that is the
dispute needed to be referred to the DAB
first, something the Applicant failed to do.
5.
The Appendix to Tender,
[2]
being a document included in the
sub-contract between the Applicant and the First Respondent provides
inter alia
that the three members of the DAB
shall be appointed by the Chairperson of the Second Respondent.
Furthermore, clause 20.2 provides
that such appointment shall take
place by a date to be recorded in the Appendix to Tender. No such
date was recorded in the Appendix
to Tender.
6.
The project was to commence on 20
September 2010 and to be complete by 14 May 2011. Email exchanges
between the Applicant and the
First Respondent however reflect that
as late as June 2013, the project was far from being finished, with
letters pointing fingers
at each other. The applicant accused the
First Respondent of non-payment and behaving like a dominant employer
over the Applicant.
[3]
The First Respondent refuted the
allegations and instead served the Applicant with a notice in terms
of certain contractual provisions
accusing them of abandoning the
Works, demonstrating the intention not to continue with the
performance of their obligation.
[4]
The said notice also highlights that
the actual work progress was too slow to complete within the required
time having fallen behind
the programme. The notice also threatened
cancellation of a contract unless this was remedied. The First
Respondent finally cancelled
the contract on 25 November 2013.
[5]
7.
Following this termination and a
number of correspondence letters between attorneys for the Applicant
and the Respondent, an arbitration
tribunal (the tribunal) was
appointed by the Second Respondent at the behest of the Applicant on
12 February 2014. The tribunal
comprised of three arbitrators being
the Third, the Fourth and the Fifth Respondent. The tribunal sat in a
preliminary hearing
on 06 March 2014 and after hearing the
submissions from the Applicant and the First Respondent, made a
pronouncement that it has
no jurisdiction to hear the matter. No
reasons were furnished for that decision.
8.
It is clear that regurgitation of the
terms of the contract is unnecessary since it would not help the
Applicant. All the applicant
needs is to have the dispute referred to
an arbitrator who would hear the dispute and give a ruling. The
submission by the Second
Respondent to the effect that it is an
association which does not preside over disputes, and whose only role
is to appoint arbitrators,
was not contested by the Applicant.
Moreover, it is conceded by the applicant that the Second Respondent
adduced its responsibility
when it appointed the tribunal on 12
February 2014. The Applicant is rather dissatisfied with the decision
by the tribunal to the
effect that it has no jurisdiction to hear the
dispute referred to it.
9.
The Applicant opted not to review the
decision by the tribunal and there is no order sought against it or
the individual arbitrators
who formed the tribunal. Realising that it
will find no joy in the relief sought, the Applicant amended its
submissions at the
stage of arguments to request that the court
should order the Second Respondent to appoint another tribunal.
Counsel for the Applicant
therefore conceded that the Applicant needs
a different relief than what it sought in the Notice of Motion. In
support of these
submissions, counsel argued that this should not be
an issue since in the Notice of Motion, there is a request for
“further
or alternative relief.”
10.
With no relief sought against the
tribunal, and the only relief sought against the Second Respondent
being misdirected for lack
of
locus
standi
to perform
the act; the only hope the Applicant has is to have the an
“alternative relief” not contained in the Notice
of
Motion. I do not know how this would help the Applicant even if the
court was to accede to this request seeing that nothing
bars any
newly appointed tribunal to reach the same decision reached by the
tribunal that ruled that it has no jurisdiction. Ordering
a
declarator based on a contract which runs parallel with the ruling
made by the arbitrator would not help either since that would
not
directly address that ruling.
11.
Further or alternative relief:
Such
a prayer can be invoked to justify or entitle a party to an order in
terms other than that set out in the notice of motion
(or summons or
declaration) where that order is clearly indicated in the founding
(and other) affidavits (or in the pleadings)
and is established by
satisfactory evidence on the papers (or is given).
[6]
Relief
under this prayer cannot be granted which is substantially different
to that specifically claimed, unless the basis therefor
has been
fully canvassed,
viz
the
party against whom such relief is to be granted has been fully
apprised that relief in this particular form is being sought
and has
had the fullest opportunity of dealing with the claim for relief
being pressed under the head of 'further and/or alternative
relief'.
[7]
12.
In
Johannesburg
City Council v Bruma Thity Two (PTY) LTD
[8]
Coetzee J held that “t
he
prayer for alternative relief is to my mind, in modern practice,
redundant and mere verbiage. Whatever the Court can validly
be asked
to order on papers as framed, can still be asked without its
presence. It does not enlarge in any way "the terms
of the
express claim.” I agree with Van Zyl J
in
Mgoqi v City of Cape Town
[9]
when he
cautioned against allowing the relief to be pushed through the heads
of argument while the same is not in the notice of
motion or the
founding affidavit. The Applicant had an option to apply for the
amendment of the Notice of Motion so as to include
the relief it now
seeks, but opted not to. This can be potentially prejudicial to the
other parties who may have entered notice
of intention to oppose
based on the prayers sought. This is apparent from the Second
Respondent who until now has argued that it
cannot perform the relief
sought against it.
13.
The court is of
the view that the relief sought is misdirected and is aimed at the
wrong parties. The court is equally not persuaded
to grant this
relief not contained in the notice of motion. It is therefore not
necessary to consider other reasons submitted by
the First Respondent
in opposing the application.
14.
For the reasons stated above, the
following order is made:
14.1The
application is dismissed with costs.
_____________________
T.V.
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
Date Heard:
04 May 2016
Judgment Delivered:
13 May 2016
For the Applicant:
Adv. M Mathaphuna
Instructed by:
Nyachowe Attorneys
Sandown
For the First Respondent:
Adv. S Bunn
Instructed by:
Cliff Dekker
Hofmeyer Inc
Sandton
For the Second Respondent:
Adv. S Mitchel
Instructed by:
Bowes &
Turner Inc
Rosebank
[1]
Clause 20. 4 provides for obtaining the DAB’s
decision and clause 20. 5 provides for amicable settlement.
[2]
See JL1, p. 260.
[3]
See ES6, p. 204 being a letter from the Applicant
dated 04 June 2013.
[4]
See ES7, p. 207 being a letter from the
Respondent dated 09 October 2013.
[5]
See JL4, p. 265.
[6]
Port Nolloth Municipality v Xhalisa
1991
(3) SA 98
(C) at 112D.
[7]
See
Erasmus
et
al Superior Court Practice
at
B1 - 130A.
[8]
1984 (4) SA 87
(T) at 93E-F
[9]
2006 (4) SA 355
(C) at 362F-363B. S
ee
also
Queensland
Insurance Co. Ltd v Banque Commerciale Africaine
,
1946 AD 272
at p. 286 and
Hirchowitz
v Hirchowitz
1965
(3) SA 407
(W).