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[2021] ZAKZDHC 31
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CMC Di Ravenna South Africa Branch v Ethekwini Municipality (D9417/2019) [2021] ZAKZDHC 31 (26 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION: DURBAN
CASE
NO: D9417/2019
In
the matter between:
CMC
Di Ravenna South Africa
Branch Applicant
and
Ethekwini
Municipality Respondent
JUDGMENT
Lopes
J
[1] This
matter has its origins in a civil engineering contract concluded
between the applicant and the respondent
on the 8
th
July
2015. The contract was for the construction of what may be referred
to as the C9-Cornubia Interchange 2, Meridian Drive in
Umhlanga Rocks
(' the contract'). The contract was terminated on the 14
th
December 2018. After the termination of the contract the parties
began an adjudication process in terms of clause 10.5 of the Contract
Conditions. The adjudicator handed down three decisions in favour of
the applicant. In terms of the first two adjudicator's awards,
he
directed that interim payment certificates were to be issued within
28 days of the awards. Payment certificates in the sum of
R2 049
130.48 and R8 129 492.42 were duly issued, but the respondent has
failed to make payment.
[2] In
this application the applicant seeks to enforce the two monetary
awards in the total sum of R10 178 622.90
as well as the third award
directing the Engineer to prepare the final payment certificate
within 28 days.
[3] The
relevant conditions of contract were contained in what is referred to
as 'General Conditions of Contract
for Construction Works (second
edition) (2010)' issued by the South African Institution of Civil
Engineering. The relevant clauses
were:
'10.5.1 If the Contract
Data provides for dispute resolution by a standing Adjudication
Board, the Employer, together with the Contractor,
shall, within 56
days of the Commencement Date, appoint the member or members of the
adjudication board.
…
10.6
Disagreement with
Adjudication Board's decision.
10.6.1 Either party
shall have the right to disagree with any decision of the
Adjudication Board and refer the matter to arbitration
or court
proceedings, whichever is applicable in terms of the Contract;
Provided that:
10.6.1.1
The decision shall be binding on both parties unless and until it is
revised by an
arbitration award or court agreement whichever is
applicable in terms of the Contract.
10.6.1.2
A party shall not dispute the validity or correctness of the whole or
a specified part
of the decision before 28 days or after 56 days from
receipt of the decision.
Unless either party shall
on or after the said 28 days, or on or before the said 56 days from
receipt of the decision, give written
notice to the other party,
referring to this Clause, disputing the validity or correctness of
the whole or a specified part of
the decision, he shall have no
further rights to refer such a dispute to arbitration or court
proceedings, whichever is applicable
in terms of the Contract.'
[4] It
is common cause between the parties:
(a) That
the dispute was referred to the decision of the Adjudication Board.
(b) The
validity or the correctness of the whole or a specified part of any
of the awards was not raised
by either party within the time period
concerned.
(c) The
contract in question made no reference to arbitration proceedings,
but only to Court Proceedings.
(d) The
applicant, as contractor, was obliged to approach the Adjudication
Board to resolve its dispute,
even after the cancellation of the
contract.
[5] The
parties were agreed that there are three issues which I am to decide
in this application:
(a) Is
the applicant's order sought one for specific performance?
(b) If
so, do I have the discretion to grant an order for payment in terms
of the parties' agreement?
(c) Should
I exercise that discretion and allow or refuse the relief.
[6] Mr
van Vuuren SC
, who appeared for the applicant together with Mr
Slon,
submitted the following:
(a) Although
the mechanism of approaching an adjudication board during the
subsistence of a contract
is primarily designed to ensure the speedy
resolution of a dispute during a contract, and that the employer
would pay the contractor
to enable the contractor to maintain its
cash flow in order to finish the project, this matter was different.
Here the contract
had been terminated. Nevertheless, the applicant
was still entitled to use the adjudication board procedure in order
to resolve
the dispute between the parties.
(b) With
regard to the exercise of this Court's discretion:
(i) There
is in reality no discretion for the court to exercise because a money
payment is sought.
So, the only options available are to grant the
money judgment or to stay the payment thereof.
(ii) The
fact that a court may have the power to exercise its discretion, is
not an opportunity for
the respondent to get a better deal than was
provided for in the contract between the parties.
(iii) Any
discretion which does exist operates only where there is an inability
to comply with an order
ad factum praestandum.
Such an order
is capable of enforcement by way of contempt of court proceedings. On
the other hand, orders
ad pecuniam solvendam
are enforced via
a writ of execution, and accordingly there is no discretion necessary
to be exercised on the court's part in deciding
specific performance,
where money judgments are sought.
(c) Reference
was made to
Enza Construction (Pty) Ltd v Paarl Tissue (Pty) Ltd
[2019] JOL 42810
(KZP) a judgment of Koen J. That matter
concerned a contractual issue where an adjudicator was appointed
where the dispute resolution
clause provided that a determination by
the adjudicator would be immediately binding upon, and implemented by
the parties. At paras
27-29 Koen J stated the following:
'[27] It is so that
specific performance is a discretionary remedy in contract, as the
respondent contends, which will be
refused if it would result in
undue hardship to the party against whom it is sought to be enforced.
But it should not be refused
if there is no alternative remedy which
will be available to an aggrieved party.
[28] Although the
respondent has resisted the relief claimed by the applicant
contending that it is a claim for specific performance
which should
be refused, what the respondent really seeks is a stay of the
obligation determined by the adjudicator on its part
to make payment
to the applicant. This stay is sough t on the basis that if the
subsequent arbitration was to reverse or at least
partially reverse
any part of the final award, that the respondent is concerned that
the applicant will not be able to make repayment
of such amount. To
avoid or reduce any prejudice it has offered to provide security for
payment by it to the applicant in the form
of a guarantee from its
holding company. The applicant also sought to counter this by
suggesting some form of security to guarantee
repayment to the
respondent if repayment is found to be due by the arbitrator if this
court contemplated directing that security
be furnished.
[29] I am not persuaded
that the grounds advanced by the respondent should result in any stay
or refusal of specific perfom1ance
of the obligation to comply with
the adjudicator's award. The adjudicator's award and its immediate
implementation is what the
parties contracted for. The applicant is
entitled to enforce the award against the respondent.'
Mr
van Vuuren
submitted
that where there is no alternative, there is, in reality, no
discretion. In
Enza Construction
as
there was no alternative remedy, and only a money judgment was
sought, there was no discretion for the learned judge to exercise.
Mr
van Vuuren
referred to
Haynes
v
Kingwilliamstown Municipality
1951
(2) SA 371
(A) which dealt with the circumstances in which a judge
would have a discretion to order specific performance, or, in a
fitting
case, to refuse to decree specific performance and leave the
plaintiff to claim, and prove his
id quad
interest.
[7] Mr
van Vuuren
also referred to
Murray
&
Roberts Ltd
v
Alstom S&E Africa (Pty) Ltd
2020 (1) SA 204
(GJ), a
judgment of Unterhalter J, where the applicant sought to enforce the
decision of an adjudicator, and the respondent resisted
the
enforcement on the basis that the adjudicator's decisions were
impossible of performance. The specific performance concerned
the
issue of the traceability of material certificates with authentic
test records in compliance with a certification agreed to
between the
parties. The general conditions of subcontract provided that the
decision of the Board would be binding and promptly
be given effect
to, unless that decision is reversed by an amicable settlement or an
arbitration award. Notice of dissatisfaction
had to be given within
28 days of receiving the Board's decision. The respondent issued a
notice of dissatisfaction which was a
few hours' outside the said
period. At paras 18 and 30, Unterhalter J stated:
'18. It is clear from
this scheme that once the Board has rendered its decision, the
decision is immediately binding upon the parties
and gives rise to an
obligation promptly to give effect to the decision. That obligation
is not suspended while a party decides
whether to give notice of
dissatisfaction, nor even if such notice is given and arbitration
proceedings commence ... And if notice
of dissatisfaction is not
given or not given timeously, then the decision becomes final and
binding and so too does the obligation
promptly to give effect to the
decision.
…
30. If, as I find, the
adjudicator's decision is one for specific performance, then the
question is whether this court should consider
the question as to
whether Alstom can comply with that decision in order to determine
whether to make the decision an order of
this court.'
Unterhalter
J further recorded that he was not being asked to decide whether to
order specific performance of the contractual obligations
owed by
parties, in which case he would be at large to determine the correct
remedy. Instead he was being asked to decide whether
to make an order
enforcing the adjudicator's decision where the adjudicator had
already decided on the remedy. Ultimately he decided
that the
respondent had agreed to be bound by the adjudicator's decision and
to give effect to it. He found that the applicant
was entitled to the
remedy which had been decided upon by the adjudicator, and he could
find no circumstances warranting him from
withholding from the
applicant the further benefits of having the decision of the
adjudicator made an order of court. This would
permit the applicant
to enforce the decision.
[8] Mr
van Vuuren
submits that what the respondent is doing is
effectively asking the court not to give effect to a contract. This
is contrary to
a number of authorities including
Brisley v Drotsky
2002 (4) SA 1
(SCA), paras 12 and 21,
South African Forestry
Co Ltd v York Timbers
2005 (3) SA 323
(SCA), para 27 and
Potgieter & another v Potgieter NO & others
2012 (1)
SA 637
(SCA), paras 32-34. These cases outline the reasons why courts
do not endorse notions of making decisions on reasonableness and
fairness which lead to legal and commercial uncertainty.
[9] Mr
van Vuuren
also referred to the decision of
JRT
Developments Ltd v TW Dickson (Developments) Ltd
a decision of
the 8Lh October 2020 heard in the Technology and Construction Court
(which operates in the Business and Property Courts
in Birmingham),
before Watson HHJ. That case concerned an application for summary
judgment to enforce an adjudication award, together
with a
cross-application for a stay of execution pursuant to the rules
applicable. The stay of execution sought by the respondent,
was to
endure until the finalisation of the trial of its claim against the
applicant on the grounds of the applicant's probable
inability to
repay the judgment sum, and on the ground that if it is unable to pay
the judgment sum, and if a stay is not granted,
it would suffer
manifest injustice. The matter related to an extended family
structure, some of the members of whom were members
of the claimant
and defendant. The two companies operated together to develop certain
properties. A dispute arose and the adjudicator's
decision was that
the defendant was liable to pay the claimant the amount demanded by
it, having failed to serve a Payless Notice
in response to a Disputed
Payment notice.
[10]
The
general rule under the statutory scheme under which the parties in
JRT
operated, was that
in the case of adjudication enforcement, there should be no stay of
execution. The purpose of the statutory scheme
was to facilitate cash
flow in favour of the contractor, and a stay would defeat that
purpose. One of the circumstances in which
a stay may be allowed is
where it is probable that the claimant would be unable to repay the
judgment sum at the end of the trial.
The court recorded that the
adjudication is designed to be a quick and inexpensive method at
arriving at a temporary result in
a construction dispute, and that:
(a) Adjudicators'
decisions were intended to be enforced summarily in order that
claimants are not kept out
of their money.
(b) In
applications to stay the execution of a summary judgment order
arising out of an adjudicator's decision,
the court was required to
exercise its discretion under order 47.
(c) The
probable inability of a claimant to repay the judgment sum awarded by
an adjudicator and enforced
by a court order at the end of a
substantive trial or arbitration hearing could constitute special
circumstances within the meaning
of order 47.
(d) If the
claimant is in insolvent liquidation, or if there is no dispute on
the evidence that the claimant
is insolvent, a stay of execution
would usually be granted.
(e) Even if the
claimant's present financial position suggested that it is probable
that it would be unable
to repay the judgment sum when it fell due,
that would not usually justify the grant of a stay.
[11] In
JRT
the court found that the claimant's financial position was
not caused either wholly or significantly by the defendant's failure
to pay the sums awarded by the adjudicator, and held that for the
reasons set out 'in the exceptional circumstances of this case'
and
'in the very unusual circumstances of this case', the defendant would
suffer manifest injustice if enforcement of the judgment
were not
stayed. The court considered it expedient to exercise its discretion
to stay execution of the judgment until the completion
of the trial
on the defendant's claim.
[12] Significant
among the factors motivating the court to make that finding was that
the directors and shareholders
of both companies were family members,
dealing with each other informally and in a way consistent with a
joint venture agreement,
rather than parties who dealt with each
other at arm's length. The defendant had relied on the complainant to
manage the project,
source the necessary funding and obtain payment
from the funders during the course of the project. Very unusually,
the commercial
agreement provided that the claimant had to pay for
the respondent's overheads during the projects, and not the other way
around.
[13]
Mr
van Vuuren
pointed out
the differences between
JRT
and
this case, and submitted that the extraordinary circumstances of that
case took it out of any consideration as authority for
the decision
in this matter. He stressed that it is not the function of this Court
to make a better contract for the respondent
other than the one which
it concluded. In addition, this is not a case of dealing with the
process of success and a reconsideration
of a decision, but rather
simply payment of the payment certificates issued pursuant to the
adjudicator's award.
[14] Mr
Wallis,
who appeared for the respondent together with Ms
Lushaba,
recorded that with regard to the third of the awards
by the adjudicator (the decision that a final certificate has to be
delivered),
the applicant's stance is that it has complied with that
obligation, although this appears to be denied by the respondent. Mr
van Vuuren
regarded the certificate referred to by Mr
Wallis
as an interim certificate because it did not contain anything
indicating that it was a final certificate. In this regard I note
that the pro forrna document is described on the face of it as a
'Progress Certificate'.
[15] Mr
Wallis
submitted that the respondent accepts that ordinarily,
amounts awarded by an adjudicator are enforceable and immediately
payable.
He submitted, however, that there are peculiar factual
reasons in this case not to follow the normal course set out in the
contract.
Reasons not to do so are:
(a) The
applicant is financially distressed, or probably insolvent on its own
version;
(b) The
respondent is a government entity and involved m the expenditure of
scarce funds and public
funding constraints;
(c) No
attempt has been made to ring-fence the funds in order to protect the
respondent, or even to
hold them in trust as offered by the
respondent;
(d) There
is a genuine dispute regarding the adjudicator's decision and that is
something to be decided
by this Court in due course;
(e) The
adjudicator's award did not involve an interim decision because the
contract had been terminated.
The principles underlying the provision
of cash-flow, and the rule that adjudicator's awards are payable
forthwith, do not apply
in this case.
[16] Mr
Wallis
distinguished the matter of
Enza Construction
on
the basis that in that matter there was no confirmation of the
financial distress of the applicant, or any question of insolvency.
He submitted that in this matter the applicant's own contention was
that it is financially distressed, and in fact it went as far
as the
Supreme Court of Appeal in order to attempt to demonstrate that. They
have been maintaining this position since 2019, when
the matter first
came before Potterill J in the court
a quo.
The applicant had
been placed under business rescue proceedings on the 14
th
December 2018, and stayed that way until the Supreme Court of Appeal
reversed the decision. It did so because of a failure to comply
with
the statutory provisions, and did not consider the basis of the
1iquidity position of the applicant.
[17] Mr
Wallis
submitted that an order for a stay of execution was not
a self fulfilling prophecy, as suggested by the applicant. The
problem
is that there is no evidence available to indicate whether
the amounts involved in the payments in this case will have any
material
effect on the applicant's financial wellbeing. It is
therefore a theoretical concern which does not arise in this matter.
However,
there is evidence available which demonstrates that
concurrent creditors may not receive any payments whatsoever. If the
company
is distressed, and is not required (in terms of the Italian
insolvency laws, the applicant being an Italian company) to guarantee
a minimum payment to concurrent creditors, the respondent may pay,
but never be able to recover if it succeeds in the upcoming
trial.
[18] Mr
Wallis
conceded that there are no South African cases which
support his contention for a stay in the circumstance present in this
case.
He submitted that the upcoming court proceedings provided a
safety net in this matter, because there are no arbitration
proceedings
available. However, the safety net would be withdrawn if
the debtor is not able to repay the amounts paid to it by the
respondent,
if the respondent subsequently succeeds in the court
proceedings. The indication of an intention to pursue arbitration
proceedings
was based on a mistaken understanding suggested by the
respondent. A special plea had, or would certainly be raised, in
respect
of a time-bar in defence to the respondent's intention to
pursue the matter. There is no reason why the applicant could not
accede
to the respondent's request that the money be ring-fenced and
placed in an attorney's trust account.
[19] With
regard to
Murray & Roberts,
Mr
Wallis
emphasized
the view of Unterhalter J that he was being asked to decide whether
to make an order enforcing the adjudicator's decision,
where the
adjudicator had already decided upon the remedy. The learned judge
was of the view that the adjudicator had determined
the merits of the
case, and decided upon a remedy, and his decision was a binary one:
enforce the decision or leave the applicant
without the benefit of
the decision. He referred to the equities of such an outcome
requiring careful consideration. Mr
Wallis
also made reference
to the equitable discretion referred to by Unterhalter J in
Murray
& Roberts,
paragraphs 73 and 75. In addition, in
Enza
Construction,
paragraphs 25 to 29, Koen J referred to the
discretion he had, and which he exercised in deciding that the
applicant was entitled
to enforce its adjudicator's award against the
respondent.
[20] Mr
Wallis
emphasised the fact that adjudication is designed to
ensure that a contractor's cash flow continues. Normally a contractor
will
use the money for cash-flow purposes related to the project in
hand. In the present circumstances, however, the cash flow available
to the applicant, if the respondent is compelled to pay, will be used
by the applicant for the discharging of its indebtedness
to its
general body of creditors.
[21] Mr
Wallis
submitted that our construction law is very similar to
that of the United Kingdom, where, if insolvency exists, a stay would
usually
be granted. Both here and in the United Kingdom,
adjudicator's rewards are immediately enforceable. It is relevant
however, that
in this matter the contract had been terminated, and
there is no suggestion that the employer would try to exploit its
position
vis-a-vis
the contractor. In fact, the contrary
applies. Accordingly, the normal rules simply do not apply in this
case, as the applicant
has no risk of not being paid. In this regard
an ordinary judicial discretion comes into play and constitutes a
balancing of the
Court's discretion, which has led to non-enforcement
in other jurisdictions. Mr
Wallis
also submitted that the
decision is at a practical level, and enforcement will put at risk
balancing the alternatives, when the
respondent is to have the
disputed matter decided at trial.
Rationale:
[22] The
starting point is the contract concluded between the parties, which
provides for the appointment of an
adjudicator to resolve disputes.
Disputes arose after the cancellation of the contract, and an
adjudicator was appointed to resolve
the disputes. The adjudicator
made three awards. The parties agreed that the adjudicator's decision
would be 'binding on both parties
unless and until it is revised by
an arbitration award or court judgment, whichever is applicable in
terms of the Contract.' The
adjudicator's awards are themselves
disputed, and the subject of a decision of this Court, to be made in
due course.
[23] The
applicant, however, is in dire financial straits. That is clearly so
by its own conduct in trying to be
placed under business rescue. The
respondent, quite reasonably, fears that if it pays the adjudicator's
monetary awards, and is
successful in the proceedings before this
Court to overturn the decision of the adjudicator , it will enjoy but
a pyrrhic victory.
This is because the applicant, by its own
admission, intends to use the monies paid in terms of the awards to
satisfy its pressing
creditors. The respondent will then be unable to
recover any payments made by it. It will, in all probability rank as
a concurrent
creditor in the liquidated estate of the applicant.
[24] That,
according to the respondent, would be manifestly prejudicial to its
interests. It seeks a stay of the
payment, pending the outcome of
this Court's decision on the objections to the adjudicator's awards.
The applicant's stance is
that the respondent is bound by the
contract it concluded, and it is not for this Court to make another
contract for the parties.
In the alternative, the respondent tenders
to pay the amount of the awards into escrow pending this Court's
decision.
[25] If
the disputes between the parties had been resolved before this Court
instead of before the adjudicator,
the solution would have simple.
The respondent, having lost, would have lodged an application for
leave to appeal, and payment
of the awards would have been stayed
pending the outcome of the application for leave to appeal, and
ultimately, if successful,
the appeal itself. If the applicant wanted
to enforce payment, it would have had to have made application
therefor.
See:
s 18
of the
Superior Courts Act, 2013
.
[26] The
reason that the contract in this matter does not follow the same
process is because it is a construction
contract. The parties to
these types of contracts provide in their contracts for the immediate
payment of adjudicators' awards
to ensure that contractors are not
held to ransom by employers who, having lost the adjudication
process, appeal and thereby suspend
payments due to the contractors.
This may have the adverse effect of constricting the contractor's
cash-flow to the point where
it is unable to afford to continue the
project, and find themselves at the mercy of the employer. The
applicant was in a different
position here – the contract had
already been cancelled when the dispute arose, and there was no
question of the applicant's
cash-flow being constricted and
preventing it from complying with its contractual duties.
[27] The
two forces at play here are the applicant's contractual rights and
the fear of the respondent that it
will not recover the sums it pays
out, if and when it turns out that the adjudicator's awards fall to
be overturned. What influence
should the fact that the usual reason
for the applicant's right to immediate payment in construction
contracts operates in a different
sphere – where the contract
has been cancelled? If it seems unfair and prejudicial to the
respondent's financial considerations,
does that entitle me to
overlook the applicant's contractual rights?
[28] In
Enza Construction,
Koen J was faced with a very similar
situation, save that, as pointed out by Mr
Wallis,
there was
no suggestion of financial stress on the part of the applicant. Koen
J was of the view that the parties should comply
with the contractual
terms – immediate enforcement of the awards. The reasoning of
that judgment should be followed by me
unless I am convinced that it
is wrong. I am not.
[29] I
do not believe that the fact that the contract in this matter has
been cancelled should affect my decision.
In
Enza Construction
the
employer cancelled the contract because the work was not proceeding
at an acceptable pace. The learned judge relied upon the
basic
principles set out in
Carillion Construction v Devonport Royal
Dockyard Limited
[2005] EWHC 778
(TCC), para 80, where the court
emphasised that adjudicators' awards must be enforced, even if they
evolve from errors of procedure,
fact or law. What may be viewed as
different is that in
Enza Construction,
the clause stated that
the adjudicator's determinations 'shall be immediately binding upon,
and implemented by the parties', whereas
in the present matter the
clause provides that '[t]he decision shall be binding on both parties
unless and until it is revised
by an arbitration award or court
judgment ... '. The decision of this Court in that regard is still
some way off. The cases, however,
have consistently adopted the view
that adjudicators' awards are meant to provide a speedy mechanism for
the resolution of disputes,
and are enforceable pending the final
determination of the disputes.
See
:
Stefanutti Stocks (Pty) Ltd
v
S8
Property (Pty) Ltd
(20088/2013)
[2013] ZAGPJHC 249 (23 October 2013), para 6.
Freeman NO &
another
v
Eskom
Holdings Ltd
(43346/09) [2010] ZAGPJHC 29 (23
April 2013), para 17.
Tubular Holdings (Pty)
Ltd
v
DBT Technologies
(Pty) Ltd
2014 (1) SA 244
(GSJ), paras 10ff.
[30] I
agree with the submissions of Mr
van Vuuren
that it is not for
me to make a new contract for the parties. Considerations of
reasonableness, fairness and equity, which may apply
in terms of
construction law in the United Kingdom do not apply in the same way
in South Africa, where parties are bound by the
terms of their
agreements, even where those terms may operate harshly in some cases.
See:
the cases cited by Mr
van Vuuren,
set out in paragraph 8 above.
[31] Whilst
the idea of placing the award payments in escrow pending this Court's
decision may offer a sensible,
reasonable and equitable solution, it
was not what the parties agreed to do in their contract. This is
really a case where the
situation that occurred was not predicted –
the contract being cancelled and the applicant taking advantage of
the contractual
terms.
[32] Mr
Wallis
argued but faintly that the funds are valuable
resources in the hands of a municipality, and the risk of those
monies being lost,
should not be allowed by our courts. The short
answer to this is that the respondent should have taken more care of
the terms upon
which it contracted. In addition, one can envisage
damage to the commercial reputation of the country, if the courts
were seen
to be actively bailing-out government institutions at the
expense of foreign investors on grounds the courts would not apply to
ordinary commercial contracts.
[33] After
the hearing of this application, but before I had completed the
judgment, I was referred, by consent
of the parties, to the decision
of Tsautse AJ of this division in
Andimahle Trading Enterprises CC
v Greater Kokstad Municipality,
handed down on the 3
rd
February, 2021. On similar facts to this matter the learned acting
judge ordered that the funds be held in escrow pending the outcome
of
arbitration proceedings. Her conclusion, at paragraph 44, was as
follows:
'The respondents have
requested the Court that the award must be paid to their attorneys
(sic) trust account pending the outcome
of the adjudication. Taking
into account that these are public funds, I am inclined to follow the
suggestion of having the award
held in trust.'
That
seems to be the only rationale for the learned acting judge adopting
a course which is entirely different from the tenor of
her judgment,
which was that the parties were bound by their contractual
obligations. If I am correct in this, I am in respectful
disagreement
with the conclusion reached by the learned acting judge, for the
reasons I have set out above. The parties elected
to agree to a
process whereby they provided for remedies outside of what
contracting parties may normally have done. They cannot
now be heard
to complain because those provisions no longer suit them.
[34] In
the result, the answers to the issues I was called upon to decide
are:
(a) Inasmuch
as specific performance is one of the remedies for breach of a
contract, which includes
orders both
ad factum praestandum
(an
order to perform a specific act) and
ad pecuniam solvendum
(an
order to pay money in performance of a party's contractual
obligations), the order prayed in the Notice of Motion is one for
specific performance.
(b) I do
not believe that I am entitled to exercise my discretion where no
other remedy is sought,
save payment of a contractual obligation, and
where no other remedy is available to the applicant.
(c) Accordingly,
I must grant the order sought.
[35] I
see no reason why the costs should not follow the result. The parties
were agreed that the costs of two
counsel is appropriate.
[36] I
accordingly make the following order:
(a) The
adjudicator's decisions dated the 8
th
August 2019 (No 1),
the 10
th
August 2019 (No 2) and the 8
th
August
2019 (No 3) and which are annexed to the applicant's founding
affidavit marked 'PDC 4', 'PDC 5' and 'PDC 6' at pages 44,
61-62 and
73-74 respectively are made orders of this Court.
(b) The
respondent is directed, forthwith, to give effect to the
adjudicator's awards by making payment
to the applicant of the sums
of:
(i)
R 2 049 130. 48.
(ii) R
8 129 492.42.
(iii)
Interest on those amounts calculated at the rate of 10% (ten percent)
from the 10
th
August, 2019 to date of payment.
(c) The
respondent is directed to pay the applicant's costs of the
application, such costs to include
those consequent upon the
employment of two counsel.
Lopes
J
Date
of hearing: 19
th
January 2021.
Date
of judgment: 26
th
February 2021.
For
the applicant: (Mr PHJ
van Vuuren,with Mr BM Slon instructed by Nicqui Galaktiou
Inc).
For
the respondent: (Mr PJ Wallis, with Ms SBR
Lushaba, instructed by Strauss Daly Inc).