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[2011] ZASCA 17
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Group Five Construction (Pty) Ltd v Minister of Water Affairs and Forestry (379/2010) [2011] ZASCA 17 (14 March 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case no: 379/2010
In the
matter between:
GROUP
FIVE CONSTRUCTION (PTY) LIMITED
............................................
Appellant
and
THE
MINISTER OF WATER AFFAIRS AND FORESTRY
..........................
Respondent
Neutral citation:
GROUP FIVE v MINISTER WATER AFFAIRS
(379/10)
[2011] ZASCA 17
(14 March 2011)
Coram:
HARMS DP, STREICHER, BRAND, SHONGWE and THERON JJA
Heard:
1 MARCH 2011
Delivered: 14 MARCH 2011
SUMMARY: Building Contract – claims for additional payment
or compensation – special plea of prescription
___________________________________________________________________
ORDER
___________________________________________________________________
On
appeal from
:
North Gauteng High Court
(Pretoria) (Southwood J sitting as court of first instance).
The appeal is dismissed with costs including costs of two counsel.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
SHONGWE JA (HARMS DP, STREICHER, BRAND and THERON JJA concurring):
[1] The appellant, Group Five Construction (Pty) Limited, instituted
a claim against the respondent, the Minister of Water Affairs
and
Forestry, for moneys allegedly due in terms of a contract for the
construction of the Injaka dam and appurtenant works for
the Sabie
River Government Water Scheme. Four of the claims arose from claims
submitted by the appellant in terms of clause 51
of the contract,
which entitled the appellant to claim for additional payment or
compensation in prescribed circumstances. The
fifth claim, claim E,
did not arise for adjudication.
[2] The respondent raised a special plea of prescription and the
court below decided to hear this issue separately. The parties
placed
a list of agreed facts before the court, and led evidence. However,
the validity of the special plea depended in the main
on an
interpretation of the rather complicated contract which had to be
read with two amendments agreed to between the parties.
These
amendments affected clause 61 of the main contract and provided for a
new dispute resolution mechanism of submitting disputes
to a dispute
review board, in lieu of mediation, which was obliged, during the
course of the contract, to attempt to settle disputes
that arose
between the contractor and the employer pursuant to the rejection by
the engineer of claims submitted.
[3] The amendment provided in summary that the board had to make
recommendations to the parties. These became final and binding
on the
parties if they were accepted by them in writing. To the extent that
a recommendation was not acceptable in writing by the
parties, either
party was entitled to refer the unresolved matter to court provided
that the particular party had within 60 days,
given written notice of
its intention to do so. Otherwise the decision of the engineer was to
become final and binding.
[4] Therefore the crisp issue between the parties was whether the
appellant’s claims, which were the subject of this process,
became ‘due’ at the stage when the said written notice
was given or whether these claims only became due after completion
of
the ‘works’ as defined in the contract (as contended by
the appellant). The relevance of the issue is to be found
in
section
12(1)
of the
Prescription Act 68 of 1969
, which provides that
prescription commences ‘to run as soon as the debt is due’.
It is common cause that if the appellant’s
causes of action
were ripe and complete when the notices were given these claims had
clearly become prescribed.
[5] Southwood J, in a detailed and thorough judgment, reported as
Group Five Construction (Pty) Limited v Minister of Water Affairs
& Forestry
(39161/05) [2010] ZAGPPHC 36 (5 May 2010), came to
the conclusion that the claims indeed became prescribed. In spite of
a valiant
attempt by the appellant’s counsel to convince us
otherwise, he missed the point in that he argued that the claims were
based
on an estimate and consequently represented an advance and not
a complete claim ‘of which the debtor is under an obligation
to
perform immediately’. We are satisfied that Southwood J’s
judgment is unassailable and that the argument does not
warrant
another judgment consisting of the same reasons albeit in different
words.
[6] The appeal is dismissed with costs including costs of two
counsel.
_________________
J SHONGWE
JUDGE OF APPEAL
APPEARANCES:
For
Appellant:
G D Harpur SC
N D Lange
Instructed
by:
Garlicke &
Bousfield Inc
UMHLANGA
ROCKS
Claude
Reid Inc
BLOEMFONTEIN
For
Respondents: R J Raath SC
P M
Mtshaulana SC
Instructed
by: The State Attorney
PRETORIA
The State
Attorney
BLOEMFONTEIN