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[2022] ZAECQBHC 20
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Amanz'Abantu Services Pty Ltd v Coega Development Corporation Pty Ltd (620/2022) [2022] ZAECQBHC 20 (10 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
NOT
REPORTABLE
Case
no: 620/2022
In
the matter between:
AMANZ’ABANTU
SERVICES PTY LTD
Applicant
and
COEGA
DEVELOPMENT CORPORATION PTY LTD
Respondent
JUDGMENT
Govindjee
J
Background
and issues
[1]
During 2016, the respondent awarded a tender to the applicant to
upgrade
the Nessie Knight Hospital. The parties subsequently
concluded a written JBCC Agreement to govern the works (‘the
JBCC’).
[2]
The JBCC
contains a detailed ‘settlement of disputes’ clause. Any
dispute arising between the parties may result in
notice by one party
to the other to resolve such disagreement.
[1]
Failure to resolve any disagreement within ten working days of
receipt of such notice results in possible referral of the dispute
to
adjudication or arbitration. When a party chooses to refer the
dispute to adjudication, this is to be conducted in terms of
the
edition of the JBCC Rules for Adjudication current at the time (‘the
Rules’). It is common cause that the parties
referred various
disputes that developed to adjudication before an agreed adjudicator.
[3]
The JBCC
provides that an 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’. Should
either party be dissatisfied with the decision
given by the
adjudicator, or should no decision be given within the period set in
the Rules, such party may give notice of dissatisfaction
to the other
party and to the adjudicator within ten working days. The termination
of the agreement does not affect the validity
of the ‘settlement
of disputes’ clause of the JBCC.
[2]
[4]
The adjudicator published a decision on 1 September 2021 (‘the
decision’).
The conclusions reached were summarised by the
adjudicator as follows:
‘
19.1 The relief
sought by the Claimant for Dispute No. 1 is partly granted. I
determine that:
19.1.1
The revision of the date for practical completion based on EOT
Claim
11 be adjusted to 12 May 2020 as determined by the PA.
19.1.2
The revision of the date for practical completion based on EOT
Claim
12 be adjusted to 20 July 2020 and not 15 October 2020 as claimed.
19.1.3
The revision of the date for practical completion based on EOT
Claim
13 is not granted (see also my determination for Dispute No. 6).
19.1.4
The calculation of the time related preliminaries must be based
on
the default provision as provided for in the CE Contract Data.
19.2 The relief
sought by the Claimant for Dispute No. 2 is granted. I determine
that:
19.2.1
The current penalties being deducted be reversed for the amount of
R7 318 364,26.
19.2.2
Interest is due on the levied penalties for the period from when
deducted
from the certificates to the date the penalty funds are
reversed and paid.
19.3 The relief sought by
the Claimant for Dispute No. 3 is neither granted nor not granted as
it is not possible for me to rule
on the alleged under-measurement
and certification by the PQS and incorrect CPAP calculation due to
time constraints as mentioned.
My ruling is therefore based on the
contractual steps to be followed, as follows:
19.3.1
The final account to be submitted by the PA to the Claimant by
not
later than 90 working days after 21 July 2021, i.e., 26 November
2021.
19.3.2
The Claimant to accept or object to the final account within 45
working days of receipt thereof, i.e., not later than by the end of
February 2022.
19.4 The relief
sought by the Claimant for Dispute No. 4 is neither granted nor not
granted as it is not possible for me to
rule on the alleged
non-certification of additional work by the PQS due to time
constraints as mentioned. My ruling is therefore
based on the
contractual steps to be followed, as follows:
19.4.1
The final account to be submitted by the PA to the Claimant by
not
later than 90 working days after 21 July 2021, i.e., 26 November
2021.
19.4.2
The Claimant to accept or object to the final account within 45
working days of receipt thereof, i.e., not later than by the end of
February 2022.
The time periods are very
liberal taking into consideration the amount of information already
available and the fact that the ‘draft
Final Account’ has
almost been completed by the PQS. I foresee therefore that the
parties would have more than enough time
to reach agreement on
whether the Claimant is entitled to be paid for the additional work
in contention. Should the parties still
not be able to reach
agreement arbitration would be the option for the parties to consider
in order to reach a final and binding
resolution.
19.5 The relief
sought by the Claimant for Dispute No. 5 is not granted.
19.6 The relief
sought by the Claimant for Dispute No. 6 is not granted. I determine
that:
19.6.1
The Claimant was not entitled to suspend the execution of the
works.
19.6.2
The contract between the parties was validly terminated by the
Respondent on 21 July 2021.
19.6.3
The Claimant has no right to continuous possession of the works.
19.6.4
The Claimant is directed to vacate the site forthwith.
19.6.5
The cost of others to remedy the Claimant’s defective work,
if
any, be deducted from the final value of the works.’
[5]
The applicant seeks compliance with parts of the decision favourable
to
it, partly based on its own calculations. The application is
opposed on the basis that it is not possible for the respondent to
perform according to the decision and because an order directing
performance will result in disproportionate hardship to the
respondent.
[6]
The Rules provide as follows:
‘
Adjudication is an
accelerated form of dispute resolution in which a neutral person
determines the dispute as an expert (and not
as an arbitrator) and
whose determination is binding on the parties for immediate
compliance and which shall remain in force until
varied or overturned
by an arbitration award.’
[7]
Importantly, the adjudicator’s written determination of the
dispute
constitutes a liquid document in terms of the Rules. Where a
written determination orders the payment of an amount of money, that
amount ‘shall be a liquidated amount’. Either party may
request the arbitrator to correct any patent clerical, typographical
or arithmetical error or clarify any ambiguity in the determination.
Any party may also apply to the High Court for the enforcement
of the
determination.
Applicable
legal principles
[8]
Construction
contracts often require disputes to be resolved by arbitration,
simultaneously postponing that process until the works
have been
completed, in order to avoid interruption.
[3]
In
Radon
Projects (Pty) Ltd v NV Properties (Pty) Ltd and Another
,
[4]
the SCA noted that it has become prevalent, also internationally, for
disputes to be provisionally resolved by adjudication. The
SCA added
as follows:
‘
The
authors of Hudson’s Building and Construction Contracts observe
that under New Zealand construction legislation adjudication
‘is
regarded as essentially a cash flow measure implementing what has
been colloquially described as a “quick and dirty”
exercise to avoid delays in payment pending definitive determination
of litigation’.
[9]
An
identically worded settlement of disputes clause was considered, and
read with the Rules, by the SCA in
Ekurhuleni
West College v Segal and Another
[5]
(‘
Segal
’).
In that matter, five of the second respondent’s claims referred
to adjudication were adjudicated in its favour,
requiring payment of
the amount of more than R3 million by the appellant. A patent error
of calculation was subsequently identified
by the second respondent
(‘Trencon’), and corrected by the adjudicator.
[6]
The appellant gave notice of dissatisfaction and referred the
disputes to arbitration. The SCA held as follows:
[7]
‘
This
did not, of course, relieve the College of the obligation in terms of
clause 40.3.3 to make payment to Trencon without delay.
However, the
College neglected to do so. Instead … it issued an application
to review and set aside the determination …
The adjudicator
operated as a tribunal created by contract … [Adjudication]
was designed for the summary and interim resolution
of disputes. The
adjudicator was given wide inquisitorial powers to resolve the
disputes as expeditiously and inexpensively as
possible. But the
adjudicator’s determination was not exhaustive of the disputes,
as it may be overturned during the final
stage of the dispute
resolution process … The College agreed to be bound by the
adjudicator’s determination. Its remedy
was to refer the matter
to arbitration. It invoked that remedy and could have pursued it
expeditiously. In these circumstances
holding the College to its
contract would not cause grave injustice nor irreparable harm.’
[10]
Enforcement
of an adjudicator’s determination in terms of a construction
contract was also in issue in the recent decision
of the SCA in
Framatome
v Eskom Holdings SOC Ltd
(‘
Framatome
’).
[8]
That contract made provision for ‘compensation events’
which allowed Framatome to claim additional payment and extra
time to
do the work from the employer.
[9]
Eskom argued that the adjudicator’s main decision was
predicated on an invalid earlier decision, so that it was
unenforceable.
The SCA confirmed that Eskom could have referred the
disputed decision to arbitration. There was also no authority
supporting the
proposition that a lack of jurisdiction in relation to
an earlier adjudication was a recognised ground for challenging an
adjudicator’s
jurisdiction in a subsequent adjudication that
relied on the findings of the challenged jurisdiction, prior to any
challenge being
made good.
[10]
In rejecting Eskom’s contentions, the SCA confirmed that the
adjudicator’s decision was final and binding and to be
enforced
as a matter of contractual obligation between parties in the absence
of an arbitration decision to the contrary.
[11]
Accepting Eskom’s contention was untenable:
[12]
‘
If
the interpretation contended for by Eskom is correct, it will
substantially undermine the effectiveness of the scheme of
adjudication.
It is plain that the purpose of adjudication 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 the final determination of
disputes
by arbitration. As far as the procedure is concerned,
adjudicators are given a fairly free hand. They are required to act
impartially
and permitted to take the initiative in ascertaining the
facts and the law. Sight should not be lost of the fact that
adjudication
is merely an intervening, provisional stage in the
dispute resolution process. Parties still have a right of recourse to
litigation
and arbitration. Only a tribunal may revise an
adjudicator’s decision. As that decision has not been revised,
it remains
binding and enforceable. Eskom cannot partially comply
with the award and decline to give full effect to the payment portion
of
the award. What Eskom is asking the Court to do is to interrogate
the merits, an aspect which falls within the purview of the
arbitration.’
[11]
There was
no justifiable reason for not giving full effect to the adjudication
decision and refusing to comply with the payment
award of the
adjudicator in
Framatome
was
disingenuous.
[13]
The SCA
added the following:
‘
The
provision that payment must be made even before arbitration is a
strong indication of the ousting of a court’s jurisdiction
to
review the award. The parties knew when they contracted with each
other that the disputes may arise and a temporary solution
in the
form of interim payments is provided to ensure the completion of the
Contract within the agreed specified period …
As stated in
Hudson’s Building and Engineering Contracts
: “It
should only be in rare circumstances that the courts will interfere
with the decision of an Adjudicator, and the courts
should give no
encouragement to an approach which might aptly be described as
‘simply scrabbling around to find some argument,
however
tenuous, to resist payment.”’
Postponement
or set-off as defences
[12]
The respondent’s defence, as expressed in its answering
affidavit, is centred on
the adjudicator’s finding in respect
of dispute six. Once termination of the contract was declared lawful,
an assessment
and evaluation of the work performed by the applicant
is required in order to determine any amounts due to either party.
The respondent
avers that the costs to remedy defects in the
applicant’s work and to complete the work can only be properly
determined once
practical completion has been achieved on the entire
project. Its case on the papers is based squarely on the process to
be followed
to prepare the final account and its belief that it is
premature for the applicant to demand payment of any monies that may
be
due to it before that process is concluded. The respondent also
places reliance on the adjudicator’s conclusion that it is
entitled to deduct from the final value of the works the costs of
remedying the applicant’s defective work, if any. It offers
its
own preliminary calculations, based on information presently at its
disposal, to suggest that the applicant is liable for damages
in
excess of R7 million, so that the applicant may be entitled only to
payment of a sum less than R275 000.
[13]
Insofar as
the respondent relies upon some form of postponement as a defence to
the application, it must be noted that it, in effect,
refuses to
comply with the outcome of a process to which it consented. Although
aggrieved, it has not given notice of dissatisfaction
and has not
referred any aspect of the adjudication to arbitration or raised a
substantive question of clarification with the adjudicator
on the
formulation of the decisions in favour of the applicant. The
determination remains binding and the parties were obliged
to give
prompt effect to it.
[14]
The
applicant was, in principle, entitled to receive quick cash flow in
accordance with the outcome of a favourable adjudication
decision on
a monetary claim. As Spilg J held in
Esor
Africa (Pty) Ltd / Franki Africa (Pty) Ltd Joint Venture
v
Bombela Civils Joint Venture (Pty) Ltd
:
[15]
‘
The
[adjudication] decision is not final but the obligation to make
payment or otherwise perform under it is. In the most elementary
way
the [adjudication] process ensures the interim solution of an issue
which requires performance and requires that the decision
is
implemented. 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 [adjudicator] …
neither payment nor performance can be withhold when the parties are
in dispute … the respondent cannot withhold payment
of the
amount determined by the adjudicator … it was precisely to
avoid this situation that the clauses were worded in this
fashion.’
[14]
There is nothing on the papers to suggest that the respondent’s
interpretation premised
on set-off was contemplated by the
adjudicator. By contrast, the adjudicator notes that six ‘separate’
disputes were
referred, to be adjudicated. This is consistent with
the notion that adjudication is intended to provide interim
resolution of
construction disputes, with an adjudicator’s
expression of payment and performance obligations to be effected
expeditiously.
Read in its entirety, the adjudicator’s
determination of dispute six centred on the applicant having
erroneously suspended
the works. The respondent placed the applicant
on terms and was found to have been entitled to terminate the
agreement when the
applicant refused to uplift the suspension. This,
according to the adjudicator, ‘… clearly demonstrates an
intention
no longer to be bound by the terms of the agreement, and
more specifically clause 15.3.’ That clause refers to the
applicant’s
obligation to ‘…continuously,
industriously and with due skill and appropriate physical resources
to bring the works
to … final completion’. As a result,
the adjudicator determined that the applicant was not entitled to
suspend the
execution of the works and the contract between the
parties was validly terminated by the respondent on 21 July 2021. The
applicant
was not entitled to continuous possession of the works and
was directed to vacate the site forthwith.
[15]
The adjudicator added that ‘the cost of others to remedy the
claimant’s defective
work, if any, be deducted from the final
value of the works’. No additional indication of the practical
impact of this conclusion
appears in the adjudicator’s
explanation of the decision in respect of dispute six. It certainly
cannot be said, based on
the text of the determination, that the
intention was for the adjudication decisions in respect of the other
disputes to be superseded
because of the dispute six outcome. I am
also unable to accept the reading that the text included after
paragraphs 19.3.2 and 19.4.2
in the adjudication determination, and
their reference to the ‘draft Final Account’, supports
the respondent’s
interpretation. Those paragraphs, in my view,
clearly relate only to the determinations of dispute three and four,
and cannot be
read to support the argument premised on the outcome of
dispute six. In any event, the adjudicator made no finding as to the
allegedly
defective work in resolving the final dispute, deliberately
adding the words ‘if any’ to that portion of the outcome.
[16]
It is trite
that where two persons are mutually indebted to one another their
obligations may be extinguished by set-off. Set-off
can only take
place if both debts are liquidated in the sense that they are capable
of speedy and easy proof.
[16]
The question whether a debt may be capable of speedy ascertainment is
‘a matter left for determination to the individual
discretion
of the Judge’.
[17]
The
facts of this matter are such that I am unable to conclude that the
applicant owes the respondent a liquidated debt. Bearing
in mind the
period of time that has already elapsed, any process of establishing
and quantifying an amount based on allegedly defective
work is, in my
view, not capable of speedy and easy proof. It follows that the
adjudicator’s determination in respect of
dispute six cannot be
set-off against determinations in favour of the applicant that are
capable of immediate enforcement. On the
issue of enforceability,
both parties relied on the decision of Unterhalter J in
Murray
& Roberts Ltd v Alstom S&E Africa (Pty) Ltd
(‘
Murray
& Roberts
’).
[18]
Adjudication
and specific performance
[17]
Murray &
Roberts
also
considered an application for the enforcement of a decision of an
adjudicator. The respondent in that matter also resisted
enforcement
based on impossibility of performance.
Murray
& Roberts
focused on the argument that a court will not order the specific
performance of obligations arising from an adjudicator’s
decision that are impossible of performance:
[19]
‘
That
the decision of the adjudicator is binding and must be given effect
to may be said to amount to little more than a stipulation
that
performance is due, whether or not notice of dissatisfaction has been
given. But, it may be argued, the fact that performance
is due under
the contract, of which the adjudication and its outcome form part,
does not alter the remedial discretion of the courts
to decide
whether to order specific performance in the face of the claim that
the performance due is impossible of performance.’
[18]
The court
highlighted the difficulties with this line of argument, with
reference to the contractually agreed scheme of adjudication.
[20]
Adjudication was intended to resolve disputes practically and, to do
so, decision-making would often result in remedies requiring
a party
to take certain actions.
[21]
Because Alston, in that matter, was required to promptly give effect
to the adjudicator’s decision, the adjudicator’s
decision
was, in substance, an order of specific performance. The relevance of
this conclusion was that the remaining question
was whether the court
should consider the possibility of compliance in determining whether
the decision should be made an order
of court.
[22]
[19]
As in the
present instance, the adjudicator in
Murray
& Roberts
had
determined the remedy in their discretion. This was a consequence of
the contractual arrangement, which included appreciation
that the
adjudicator’s decision would be final and binding and must be
enforced. The consequence was as follows:
[23]
‘
Put
simply, this court is not being asked to decide whether to order
specific performance of a primary obligation owed by a party
to a
contract, where the court is at large to determine the correct
remedy. Rather, the court is being asked to decide whether
to make an
order enforcing an adjudicator’s decision where the adjudicator
has already decided upon the remedy, in circumstances
where the
parties gave him the competence to do so and had undertaken to treat
his decision as final and binding.’
[20]
It is
apparent that courts retain the inherent power to regulate their own
process and to develop the common law. According to Unterhalter
J,
one incidence of that power is the competence to decide whether to
make an adjudicator’s decision, arising from an agreement,
enforceable by order of court. This power is to be exercised upon
just and equitable considerations, bearing in mind the contractual
agreement between the parties to afford the original remedial
decision-making power to an adjudicator.
[24]
[21]
The court
proceeded to identify the following relevant questions, noting that
this was not a closed list of enquiries:
[25]
a.
Did the adjudicator decide the dispute now raised before the court?
i.If not, could the party
contending for impossibility have raised the issue before the
adjudicator, and if so, did the party do
so, and if not, why not?
b.
Why should the party contending for impossibility escape its
obligations to be
bound by the outcome of the adjudication, to treat
it as final and give effect to it?
c.
What are the consequences of permitting a party to escape the
enforcement of
the decision, bearing in mind that the adjudicator has
determined the merits of the case and decided upon a remedy and
considering
the equities of a decision by the court to leave the
applicant without the benefit of that decision.
d.
What are the systemic risks if agreed procedures for dispute
resolution that
are intended to be quick and avoid disruption to
large construction projects, nevertheless give rise to lengthy
litigation before
the courts?
e.
Is there a risk that the impossibility relied upon will indeed, if an
order is
made, require what cannot be done and expose the defaulting
party to the risk of contempt proceedings?
[22]
It may be
accepted for present purposes that this issue was not raised before
the adjudicator and arose based on the formulation
of the
determination itself. The respondent endeavours to avoid being bound
by the adjudication determination based on its reliance
on dispute
six. As discussed, there is no merit to that argument. There is no
serious dispute on the papers as to the applicant’s
calculations in respect of those determinations in its favour. It
amounts to a bare denial, not based on any factual or legal grounds
and, as
Mr
Mullins SC
for
the applicant argued, without any different calculation being
advanced in respect of those aspects of the determination.
[26]
Those aspects of the determination were not queried with the
adjudicator as ambiguous or referred to arbitration. The respondent
merely falls back on its argument that there should be a
comprehensive calculation, to be undertaken by the Quantity Surveyor,
and possibly subject to its own dispute process, before that
calculation may be finalised. This is a repeat of the arguments for
postponement of finalisation or set-off already considered, coupled
with submission of a preliminary calculation that has not been
endorsed by an adjudication determination. The other questions
identified in
Murray
& Roberts
may
similarly be answered in favour of the applicant. There is no good
reason advanced by the respondent for non-enforcement and
it would be
inequitable to deprive the applicant of adjudication determinations
that stand in its favour. Finding for the respondent
would result in
the applicant being left without a remedy to enforce the adjudication
determinations in its favour until the respondent,
in its own time,
finally established and quantified a basis for deducting from the
amounts it owes the applicant. Indeed, to proceed
on that basis would
be to forsake the accepted contractual arrangement, which is
frequently adopted in the construction sector,
and allow a more
litigious approach to trump expeditiousness. On my interpretation the
relief sought is capable of enforcement
and does not unnecessarily
expose the respondent to contempt proceedings by compelling
compliance with an order that is unenforceable.
[27]
[23]
Finally,
Ms
Ntsepe
,
for the respondent, urged me to dismiss the application because of
the undue hardship that would be inflicted upon the respondent.
[28]
This is not a case that is established on the papers and, in any
event, it cannot be said that ordering specific performance will
result in undue hardship to the respondent that is completely
disproportionate to the benefit that the applicant will enjoy. There
is also no basis for accepting that there is an alternative remedy
that will secure sufficient benefit to the applicant.
[29]
In these circumstances, it is appropriate to exercise the court’s
discretion in favour of implementation of the relevant
adjudication
determinations, and in a manner that avoids depriving the successful
party of the benefit of decisions taken in its
favour. There are no
compelling reasons not to do so in my view. The parties were in
agreement that costs must follow the result.
Order
[24]
The following order will issue:
1.
The respondent is directed to comply with the adjudicator’s
decision dated
30 August 2021.
2.
The respondent must:
2.1
in respect of paragraph 19.1.2 of the Adjudication Determination read
with paragraph 19.1.4:
2.1.1 certify and
pay the costs for completion of the works having regard to the
extension of time for practical completion
that was granted to 20
July 2020, amounting to the sum or R1 906 277,06 inclusive
of VAT;
2.1.2 pay default
interest on the aforesaid amount at the rate of 7% per annum
compounded monthly calculated from 1 September
2020 to date of
payment.
2.2
in respect of paragraph 19.2 of the Adjudication Determination:
2.2.1 pay the sum
of R7 318 364,26 to the applicant in respect of the
reversal of penalties;
2.2.2 pay interest
in the amount of R695 430,00, being the interest calculated on
the aforesaid amount until 1 July 2020;
2.2.3 pay further
interest on the sum of R7 318 364,26 at the rate of 7% per
annum compounded monthly calculated
from 2 July 2020 to date of
payment; and
2.3
in respect of paragraphs 19.3 and 19.4 of the Adjudication
Determination, submit its final account to
the applicant in respect
of contract number CDC/591/15.
3.
The respondent is directed to pay the applicant’s costs.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard
:
28 July 2022
Delivered
:
10 August 2022
Appearances:
Applicant’s
Counsel
:
Adv N Mullins SC
Gqeberha
Instructed
by
: Peter Le Mottee
Attorneys
Attorneys
for the Applicant
0861
756 529
Email:peter@plmlaw.co.za
c/o
Brown Braude & Vlok Inc.
317
Cape Road
Newton
Park
Gqeberha
04
1
365 3668
Email:gaylene@bbv.co.za
Respondent’s
Counsel:
Adv NL Ntsepe
Gqeberha
Instructed
by
: Smith Tabata Incorporated
189
Cape Road
Gqeberha
Tel:
043 703 1876
Email:ginaf@smithtabatha.co.za
[1]
In
terms of clause 40.7 of the JBCC, recording of a dispute does not
relieve the parties from liability for the due and timeous
performance of their obligations.
[2]
Clause
40.9 of the JBCC.
[3]
Radon
Projects (Pty) Ltd v NV Properties (Pty) Ltd & Another
[2013]
ZASCA 83
(‘
Radon
Projects
’)
para 3.
[4]
Radon
Projects
ibid
para 4.
[5]
Ekurhuleni
West College v Segal and Another
[2020] ZASCA 32
(‘
Segal
’).
[6]
Segal
ibid
para 8.
[7]
Segal
ibid
paras 9, 15, 21, 22. The reference to ‘grave injustice’
and ‘irreparable harm’ was made in the context
of the
referral to arbitration and the power of the arbitrator to revise
the adjudicator’s determination as if it had not
been issued.
The College was effectively requiring the court a quo to review
unterminated proceedings, which would only be permissible
if ‘grave
injustice’ or ‘irreperable harm’ could be
demonstrated: see
Segal
para 18.
[8]
Framatome
v Eskom Holdings SOC Ltd
[2021]
ZASCA 132
(‘
Framatome
’).
[9]
For
further details of ‘compensation events’ and their
assessment, see
Framatome
ibid para 6.
[10]
Framatome
ibid
para 21.
[11]
Framatome
ibid
para 22.
[12]
Framatome
ibid
para 23.
[13]
Framatome
ibid
para 24. In
Framatome
,
the SCA held that the parties would be bound by an adjudicator’s
decision if the adjudicator had confined himself to a
determination
of the issues put before him, even if he had erred in determining
those issues:
Framatome
ibid para 29.
[14]
See
Tubular
Holdings (Pty) Ltd v DBT Technologies
(Pty)
Ltd
2014
(1) SA 244
(GSJ) para 8. Also see
Esor
Africa (Pty) Ltd / Franki Africa (Pty) Ltd Joint Venture v Bombela
Civils Joint Venture (Pty) Ltd
(Unreported
South Gauteng High Court, Johannesburg decision) (case no. 12/7442)
(‘
Esor
Africa
’)
para 9.
[15]
Esor
Africa
ibid
paras 11, 12, 13.
[16]
See
Blakes
Maphanga v Outsurance Insurance
2010 (4) SA 232
(SCA) (‘
Blakes
Maphanga
’)
para 15.
[17]
Blakes
Maphanga
ibid
para 18.
[18]
Murray
& Roberts v Alstom
2020
(1) SA 204
(GJ) (‘
Murray
& Roberts
’).
[19]
Murray
& Roberts
ibid
para 21. Alstom argued that the enforcement of the adjudicator’s
decision was no different from any other claim of
specific
performance and that if the decision was impossible of performance,
no order should issue to compel what could not be
done. Murray &
Roberts contended that the adjudicator’s decision was the
outcome of an agreed, binding mechanism of
dispute adjudication and
that the decision was enforceable: paras 10, 13.
[20]
Murray
& Roberts
ibid
para 22 et seq.
[21]
Murray
& Roberts
ibid
para 24.
[22]
Murray
& Roberts
ibid
paras 30-35.
[23]
Murray
& Roberts
ibid
paras 36, 38.
[24]
Murray
& Roberts
ibid
para 39.
[25]
Murray
& Roberts
ibid
para 41.
[26]
See
the SCA decision in
Framatome
supra fn 8 para 31 for an illustration of an order to comply with an
adjudicator’s determinations that involve price adjustment
and
interest calculations.
[27]
See
Murray
& Roberts
supra fn 18 para 69.
[28]
See
Murray
& Roberts
ibid
para 73. In that matter, the respondent attempted to provide a basis
for its averment in a rejoining affidavit. Also see
Haynes
v King Williams Town Municipality
1951 (2) SA 371
(A) 380B-C.
[29]
Murray
& Roberts
ibid
para 75.