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[2020] ZALMPPHC 52
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Rekhuditse Cleaning and Construction Services CC v Elias Motsoaledi Local Municipality and Another (7460/2019) [2020] ZALMPPHC 52 (11 June 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NO:7460/2019
REKHUDITSE
CLEANING AND CONSTRUCTION
SERVICES
CC
APPLICANT
And
ELIAS
MOTSOALEDI LOCAL MUNICIPALITY
FISRT RESPONDENT
VAN
DER HOVEN, EMILE N.O
SECOND RESPONDENT
JUDGMENT
MULLER J:
[1]
This
application has its origin in an award made by the second respondent,
who was appointed as adjudicator in a dispute between
the applicant
and the first
respondent in terms
of the Construction Industry Development Board (CIDB adjudication
Procedure Document (First Edition, March 2004).
[1]
[2]
The
application would have been less complicated if that was the only
dispute that originated from the second respondent's appointment
as
adjudicator. The second respondent, who is a practicing advocate
instituted action against the first respondent in the Groblersdal
magistrate court for the recovery of outstanding portion of his fees
for the work he has done as the appointed adjudicator. The
first
respondent instituted a counter-claim to recover the money on the
basis of unjust enrichment. The magistrate found in favour
of the
second respondent. When the matter came on appeal to this court
(Mudau J, with Makgoba JP concurring)
[2]
.
The appeal succeeded. The following order was made on 22 May 2020:
"27.1
The appeal is upheld
27.2
The
order made by the court of first instance is set aside and
substituted with an order in the following terms:
(a)
The
plaintiff's claim is dismissed with costs.
(b)
The
defendant's counterclaim is granted.
(c)
Judgment
is granted against the plaintiff for the payment of R31 181.90
(THIRTY ONE THOUSAND ONE HUNDRED AND NINETY CENTS) with
interest from
the date of the judgment (24 May 2019) to date of final payment at
the applicable rate.
[3]
(d)
Costs
of suit
[28] No
order is made in respect of the costs of the appeal."
[3]
I
will revert to the contents of the appeal judgment. The reason why
reference is made to the said judgment will become clear in
due
course.
[4]
I
turn now to the application and the facts upon which the application
is founded and, of course, also the facts relied upon by
the first
respondent. The applicant seeks final relief. When an applicant seeks
final relief in motion proceedings disputes of
fact must be
determined on the facts as stated by the respondent together with the
admitted or undenied facts in the founding affidavit
of the applicant
which provides the factual basis for determination unless denials or
disputes raised in the version of the respondent
are not real or
genuine or the denials are bald or unworthy of credit or the
respondent's version raises such obvious fictitious
disputes of fact
or so untenable or implausible or far-fetched that a court is
justified in rejecting that version.
[4]
[5]
The
applicant seeks, firstly, a declaratory order that clause 7.4 of the
CIDB Procedure document and the contract concluded between
the
parties as well as the second respondent's adjudication award dated
26 April 2017 is binding and enforceable. Secondly, payment
of the
amount of R507 804.56 (inclusive of VAT) and the amount of R203
429.27 (inclusive of VAT) as determined by the second respondent
in
the award, is sought.
[6]
It
is common cause or, at least, not disputed that the second respondent
was appointed in terms of the appointment procedure prescribed
by the
CIDB procedure document. It is further common cause that the second
respondent in fact adjudicated disputes referred to
him by the
parties, in terms of the CIDB Procedure document.
[5]
The second respondent made two interim awards both of which were set
aside in the South Gauteng High Court. A final ward was published
on
26 April 2017, but was only delivered to the parties on 26 May 2017,
due to the costs of the second respondent not having been
paid on 26
April 2017.
[6]
It bears mentioning that the final award had neither been attacked
nor set aside by a competent court.
[7]
The respondent averred
in
limine
that the mandate of the
second respondent was terminated on 3 April 2017 by the first
respondent in terms of a letter addressed
to the second respondent,
with a copy to the attorneys acting on behalf of the applicant who
tacitly consented, with the result
that the final award is invalid
and is null and void.
[8]
The second point
in
limine
is that this court is bound
by the decision of the High Court which confirmed that the mandate of
the second respondent was terminated
on 3 April 2017.
[9]
I revert to the first point
in
limine.
Counsel for the respondent,
during argument, conceded (and correctly so, in my view) that the
agreement between the applicant and
the first respondent in terms
whereof the second respondent was to be appointment as adjudicator is
not a contract of mandate.
The parties resorted to adjudication to
resolve disputes speedily which might have arisen during
construction. It was explained
in
Radon
Projects(Pty) Ltd v NV Properties (Pty) Ltd and Another
[7]
that:
"It
has now become common internationally-in some countries by
legislation-for disputes to be resolved provisionally by
adjudication.
In
Macob Civil Engineering Ltd v Morrison
Construction Ltd
adjudication was described, in the context of
English legislation, as-
'a speedy
mechanism for settling disputes [under) construction contracts on a
provisional interim basis, and requiring the decision
of adjudicators
to be enforced pending the final determination of disputes by
arbitration, litigation or agreement... But Parliament
has not
abolished arbitration and litigation of construction disputes. It has
merely introduced an intervening provisional stage
in the dispute
resolution process.'
[10] An adjudicator is
a neutral third party who must determine the dispute as an expert.
The adjudication
agreement is a tripartite contract between the
applicant, the first and second respondent which has the attributes
of a contract
of mandate
[8]
.
Adjudication, again, is a species of arbitration.
[9]
They must be interpreted like any other contract as enunciated in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[10]
that:
"Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory
instrument , or
contract, having regard to the context provided by reading the
particular provision or provisions in the light
of the document as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document,
consideration must be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which
the
provision
appears; the apparent purpose to which it is directed and the
material known to those responsible for its production.
Where more
than one meaning is possible each possibility must be weighed in the
light of all these factors. The process is objective,
not subjective.
A sensible meaning is to be preferred to one that leads to insensible
or unbusinesslike results or undermines the
apparent purpose of the
document. Judges must be alert to, and guard against, the temptation
to substitute what they regard as
reasonable, sensible or
businesslike for the words actually used. To do so in regard to a
statute or statutory instrument is to
cross the divide between
interpretation and legislation; in a contractual context it is to
make a contract for the parties other
than the one they in fact made.
The "inevitable point of departure is the language of the
provision itself' , read in context
and having regard to the purpose
of the provision and the background to the preparation and production
of the document."
[11]
Reference
must be made to the CIDB Procedure document which contains the terms,
conditions, and the procedure to be followed to
instigate, adjudicate
and conduct the adjudication. The relevant provisions are:
"6.1.
The Adjudicator shall reach his decision within 28 days, or such
longer period as agreed by the Parties in writing, after
the dispute
has been referred to him for adjudication. The period of 28 days may
be extended by up to 14 days with the consent
of the referring Party.
7.1. The
Adjudicator shall reach his decision and so notify the Parties
together with his reasons within the time limits in paragraph
6.1 and
may reach a decision on different aspects of the dispute at different
times.
7.3. Should
the Adjudicator fail to reach his decision and notify his decision
and notify the Parties in the due time either party
may give 7 days
notice of its intention to refer the dispute to replacement
adjudicator appointed in accordance with the procedure
in paragraph
4.3.
4.3. If
confirmation is not received under paragraph 4.1 or a selection is
not made under paragraph 4.2, or the adjudicator does
not accept or
is unable to act, then either party may within a further 3 days
request the person or body named in the contract
or if the Board to
appoint the Adjudicator within 5 days. Such request shall be in
writing on the appropriate form of application
for the appointment of
an Adjudicator, if any, and be accompanied by a copy of the Notice of
Adjudication and any applicable fee.
7.4. If the
Adjudicator fails to reach and notify his decision in due time but
does so before the dispute has been referred to a
replacement
adjudicator under paragraph 7.3 his decision shall still be
effective. If the Parties are not so notified then the
decision shall
be of no effect and the Adjudicator shall not be entitled to any fees
or expenses but the Parties shall be responsible
for the fees and
expenses of any legal or technical advisor appointed under paragraph
6.6 subject to the Parties having received
such advice.
7.6.
At
any time until 7 days before the Adjudicator is due to reach his
decision, he may give notice to the Parties that he will deliver
it
only on full payment of his fees and expenses. Any party may the pay
these costs in order to obtain the decision and recover
the other
Party's share of the costs in accordance with paragraph 7.5 as a debt
due.
7.7.
The
Parties shall be entitled to the relief and the remedies set out in
the decision and to seek summary enforcement thereof, regardless
of
whether the dispute is to be referred to legal proceedings or
arbitration. No issue decided by an adjudicator may subsequently
be
laid before another adjudicator unless so agreed by the Parties"
[12]
The
letter dated 3 April 2017 that purportedly suspended the appointment
of the second respondent as adjudicator states:
"We
refer to the above matter and to the so-called "interim
decision" dated 8 February 2017, the correspondence previously
exchanged between yourself, the "amended interim decision"
dated 28 February 2017. And the "General Notice 1"
dated 30
March 2017.
In the
so-called decisions you purported to determine an issue not in
dispute between the parties. In so doing you exceeded your
jurisdiction and mandate. The costs award that followed is improper.
We have
previously corresponded extensively, in this regard and have
repeatedly expresses our client's dissatisfaction with regard
thereto. Our client has, subsequently secured the services of counsel
who, having reviewed the record and the award has advised
our client
to apply to the High Court for the review and setting aside of the
decision and of your appointment as adjudicator.
It follows, as a
result, that our client will not be paying your invoice, generated as
a result of the impugned decision.
You are
also called upon to desist in any further handling of the matter
until the aforesaid review has been concluded.
To this
extend a roundtable meeting was held with the legal representatives
of the client. They have indicated, unequivocally, that
they will
abide our client's application to the High Court for the review and
setting aside the impugned interim award.
You are
called upon, immediately, to acknowledge receipt of this letter and
to give the undertaking sought in paragraph 5 above,
failing which,
the necessary urgent relief will be sought against you."
[13]
The
applicant's attorneys reacted to the letter in an email dated 6 April
2017. He stated:
"Your
letter of the 3 April 2017 addressed to the Adjudicator bears
reference.
On the
onset, we need to record that our meeting of the 31 March 2017 was
without prejudice and our client's rights were reserved.
It is
startling that despite the interim award being issued on the 08
February, you are only taking a decision to challenge it now.
It is
more startling that you intend to challenge the said award despite
your client having followed its terms by inter alia amending
its
papers and even paying the 50% of the costs awarded against your
client. In our view you cannot comply with the award and challenge
it
as the same time.
In our
view
the
intended review application is nothing but a tactic to delay the
matter and an abuse of court processes and public funds by
your
client. Having said that we have no issue with abiding by the
decision of the court. However, we shall only make a firm decision
once we have received the court papers."
[14]
I do not agree with the submission that
the letter purports to terminate the appointment of the second
respondent as adjudicator.
At best, the letter conveys to the second
respondent and the applicant that a decision by the first respondent
had been made to
unilaterally suspend the adjudicator from further
acting as such, pending an application to review his two interim
decisions of
8 and 28 February 2017 together with the "General
Notice 1" dated 30 March 2017, and no less, review and to set
aside
his appointment.
[15]
It is as stated before, common cause
that an application was launched on 13 July 2017 only to set aside
the two aforesaid interim
decisions only. Of the threat to set aside
the appointment of the second respondent, came nought.
[15]
The letter of suspension ought to have
been addressed to the second respondent by the applicant and first
respondent jointly, after
they had agreed to suspend the second
respondent which clearly, never had taken place.
[16]
In any event, the CIDB Procedure
Document does not contain any provision which grant any of the
parties the authority to unilaterally
suspend the adjudicator. The
first respondent does not rely on such a provision, but rely
exclusively on its letter dated 3 April
2017.
[17]
What is clear from the contents of the
letter dated 6 April 2017 is that the applicant's attorneys
considered the proposed review
application as an abuse of process,
and added that they await the application. When the application was
eventually launched three
months later it did not address the setting
aside of the appointment of the second respondent. This letter
cannot, with any stretch
of the imagination, be construed as an
instrument in terms whereof consent was granted to the first
respondent to terminate (or
suspend) the appointment of the second
respondent or simply as acquiesce. Nor can the letter which the
applicant's attorney addressed
to the first respondent be construed
as an unequivocal waiver of any of its contractual rights. In any
event, the applicant and
first respondent must act jointly, which
plainly was not the case.
[18]
The adjudicator's agreement is attached
to the papers. In terms of that agreement the adjudicator agreed to
conduct the adjudication
in accordance of the CIDB Procedure
document. It is accepted that the contract in terms whereof the
second respondent was jointly
appointed is a contract of mandate
entered into by both the applicant and the first respondent. The
ineluctable conclusion is that
the applicant and the first respondent
had to act jointly to suspend or terminate his appointment.
[19]
Clause 7.1 of the CIDB Procedure
Document sets out the procedure to terminate the appointment of an
adjudicator. To do so, the party
who wishes to do so must follow a
prescribed procedure. If an adjudicator failed to reach and notify
his decision in the 28 days
period or an extension of the date
(clause 6.1), either party may give 7 days' notice of its intention
to refer the dispute to
a replacement adjudicator. And if the
adjudicator fails to reach and notify his decision in due time but
does so before the dispute
has been referred to a replacement
adjudicator under clause 7.3 his decision shall be valid and
effective. The purpose of the document
is to provide a mechanism to
facilitate the resolution disputes rather than to obstruct their
resolution. If a party wishes to
remove the adjudicator it must act
positively.
[20]
It is common cause that neither party
invoked clause 7.3 and 7.4 to terminate the appointment of the second
respondent as the adjudicator
in terms of the CIDB Procedure
document. The letter, moreover, fails to invoke the provisions clause
7.3 as a means to terminate
the appointment of the second respondent.
The letter dated 3 April 2017 had no legal effect and is invalid for
the reasons set
out before.
[21]
The first respondent, accordingly,
acquired no right in terms of the CIDB Procedure document, in terms
whereof it was authorised
to suspend or terminate the appointment of
the second respondent for the reasons set out in the letter.
[22]
The provisions of clause 7.1 is merely
directory. It cannot be construed as peremptory, the failure of which
will visit a decision
with invalidity, if the decision is given after
the expiry of the 28 day period (or an extension of the date by
agreement), simply
by reason of its lateness.
[11]
Clause 7.4 makes it plain that as long as notice is given by the
adjudicator, and, if no notice had been given to appoint a
replacement
adjudicator, the decision so rendered will be valid and
thus effective.
[23]
When the second respondent notified the
parties of his decision on 26 April 2017 and when he delivered it on
27 May 2017, his appointment
as adjudicator was unaffected and valid
in terms of the CIDB Procedure document.
[24]
The first point
in
limine
has no merit and is
dismissed.
[25] This brings
me to the second point
in limine
that this court is bound by
the judgment of the High Court sitting in the appeal from the
Groblersdal magistrate's court. Reference
was made earlier in this
judgment to the said judgment and I will revert to that judgment.
[26]
It is important to realise that the
applicant was not a party in the action instituted by second
respondent against the first respondent,
when the trial commenced.
The starting point, I believe, is the
exceptio
res judicatae.
In
African
Farms
&
Townships
v Cape Town Municipality
[12]
it was held that:
"The
parties are the same, and the appellant in the action it has
instituted, seeks the same order as in the original proceedings,
i.e.
an order declaring the notice of expropriation invalid. What is
disputed is that the appellant is now demanding the same thing
on the
same ground...
In regard
to the requirement that the ground of the demand must be the same,
the authorities refer to the
causa petendi
or
origo
petitionis.
According to
Voet,
44.2.4, it is not the form
of action which determines the sameness of the
causa petendi,
but
the identity of the question which is again raised or set in motion
The rule appears to be
that where
a court has come to a decision on the merits of a question in issue,
that question, at any rate as a
causa petendi
of the same
thing between the same parties, cannot be resuscitated in subsequent
proceedings."
[27]
The reason for the
exceptio
to be pleaded is that the authority
of
res judicata
induces
a presumption, which is premised on public policy, that the judgment
upon a claim submitted to a court is correct and excludes
proof to
the contrary.
[13]
[28]
In the present application the applicant
claims from the first respondent recovery of the amounts awarded to
it by the second respondent.
The
exeptio
res judicata
is, therefore not
enforceble
[29]
Counsel for the first respondent
conceded that a tripartite agreement was entered into by all the
parties, but argued that it is
of no moment because a two judge
court has pronounced upon the question. The
ratio
decidendi
was that the second
respondent was appointed in terms of a contract of mandate which was
suspended by the first respondent. The
suspension deprived the
applicant of its jurisdiction to make a final award. This court,
comprising of a single judge of this Division,
is obliged to follow a
two-judge decision of his own Division on the same question.
[30]
If the submission of counsel is to be
accepted, this court will be bound to follow a judgment between
different parties, as if the
applicant was a party to that action,
despite not being a party. Put differently, the second respondent
derived his authority to
adjudicate the dispute between the applicant
and the first respondent from a contract between them, in terms
whereof he was appointed
to adjudicate the dispute in terms of the
provisions of CIDB Procedure document. The fees of the adjudicator
was agreed in terms
of the adjudicator's agreement which is included
in and formed an integral part of the in the CIDB Procedure document.
The claim
that the second respondent instituted in the magistrates'
court was for payment of his professional fees for adjudication of
the
dispute, referred to him in terms of the CIDB Procedure document,
by the parties. In terms of the adjudicator's agreement, the second
respondent agreed and undertook to conduct the adjudication in
accordance with the provisions contained in the CIDB Procedure
document.
[31]
The defence of the first respondent,
against the claim of the second respondent was that his "mandate"
was suspended and
that his award was invalid as a result. Again, the
defence was premised on the existence of the very contractual
arrangement between
the applicant, the first respondent and the
second respondent.
[32]
In relation to the claims instituted in
the magistrate's court it must be clear, at least, that in that
action in terms whereof
the second respondent claimed his fees from
the first respondent, the entitlement of which emanated from his
agreement with the
first respondent and the applicant. It leaves
little doubt, to my mind, that the applicant ought to have been
joined as co-defendant
in that action with the first respondent, as a
result of the financial interest that the applicant had and still has
in the outcome
of that action. It has been authoritatively laid down,
as far back as 1935, by the then Appellate Division in
Morgan
and Another v Salisbury Municipality
[14]
that:
"Now
the feature which is common to the cases of joint owners, joint
contractors, and partners, is that that in all of them
there is a
joint financial or proprietary interest. The position may therefore
be broadly stated to be that by South African practice
the only cases
in which a defendant has been allowed to demand a joinder as of right
are the cases of joint owners, joint contractors
and partners, in all
of which cases there exist a joint financial or proprietary interest.
But that in other cases a defendant,
as a general rule, has not been
allowed to demand such a joinder."
[15]
[33]
It
will be recalled that the parties agreed in clause 2.1 that the
adjudication shall be conducted in terms of the CIDB Procedure
document and that the second respondent has made an award sounding in
money in favour of the applicant, which the applicant wishes
to
enforce, in this court, in terms of clause 7.7 of the CIBD Procedure
document. The High Court order cannot raise the
exceptio
res judicata
against
the applicant, but as can be seen, the same issue, namely,
whether
the second respondent was suspended which rendered his decision null
and void, is also raised against the applicant, in
these proceedings.
The applicant is prejudiced, due to its non-joinder in the
proceedings in the magistrates' court and the High
Court. Although
the High Court order does not directly affect the applicant, the
position is undesirable and prejudicial and cannot
be dispensed with
unless the applicant has waived his rights to be joined. It was held
in
Home
Sites (Pty) Ltd v Senekal:
[16]
"It is true that if she
remains outside the litigation a decision...would be
res
inter alios acta
as
far as she is concerned and would not be binding by way of res
judicata upon her. But if such a decision were given by this Court
it
would be authority on the legal issues which would be directly in
point and calculated to operate with decisive effect upon
her claim
to be entitled to the servitude. Accordingly it seems to me that she
has, in the language used in
Collin
v Toffie
1944
A.O. 456 at p. 464 a direct and substantial interest in the results
of the decision of this issue, which cannot properly be
decided
without her being joined as a party."
[34]
The effect of the passage
supra
on the facts of this matter
is that the decision of the High Court is not binding on the
applicant by way of
res
judicata
but nevertheless has
a direct and decisive effect on the claim of the applicant.
[35]
On the factual issues, the decision by
the High Court is not authoritive. I am mindful of the
dictum
in
R
v Wells
[17]
to the effect that:
"Decided cases are,
however, of value not for the facts but for the principles ·of
law which they lay down. In this
connection I can do no better than
quote the remarks of Lord Finlay in
Thomson
v Inland Revenue
(1919
S.C (H.L.) 10-
"No
enquiry is more idle than one which is devoted to seeing how nearly
the facts of the two cases come together: the use of
cases is for the
proposition of law they contain, and it is of no use to compare the
special facts of one case with the special
facts of another for the
purpose of endeavouring to ascertain what conclusion you ought to
arrive at in the second case."
[18]
[36]
I am not bound to follow a judgment on
the factual issues. But if the facts upon which the High Court
decision is based are substantially
similar, this court will be bound
to follow the High Court decision of this Division.
[19]
[37]
When the facts of the two cases are
considered they show that certain underlying facts are the same. The
second respondent claimed
professional fees from both the applicant
and the first respondent. The claim arose from the dispute between
them and the appointment
of the second respondent by them as
adjudicator. The claim against the applicant was withdrawn prior to
the trial. The first respondent
instituted a counterclaim against the
second respondent for payment of an amount of R31 186.90 erroneously
paid to the second respondent
in respect of wasted costs and expenses
in the amount of R62 373.80 less certain expenses. A meeting took
place between the legal
teams of the applicant and the respondent.
Subsequent to that meeting a letter was addressed to the second
respondent that proceedings
to review his interim decisions and that
he should desist from handling of matters until the aforesaid review
has been completed.
[38]
However, on 26 April 2017 the second
defendant notified the first respondent that his decision is handed
down. The review of the
two interim awards was successful and the
awards were set aside. The counterclaim of the first respondent was
based on unjust enrichment
as a result of the setting aside of the
interim awards. The second respondent abandoned his first claim but
persisted with his
claim for his fees in respect of the final award.
[39]
It is reasonable to accept that the
applicant played no further role in the action from that date the
claim against the applicant
was withdrawn and when evidence was
adduced in the magistrates' court. The applicant, therefore, was not
privy to the evidence
and not able to contest any of it, not even
evidence which had a direct bearing what the applicant had done or
did not do. In short,
the version of the applicant was never put any
of the witnesses. It seems that the letter of 6 April 2017 addressed
to the first
respondent was not presented as evidence at the
trial.
[20]
Notwithstanding, the High Court made an adverse finding against the
applicant with regard to its conduct or lack thereof in relation
to
the letter of 3 April 2017. The High Court held:
"22. Adopting the approach in
Mc Williams, I hold that the learned magistrate was in this instance
wrong in concluding that
the appellant [the first respondent] acted
unilaterally in suspending the mandate of the respondent without the
support of Rekuditse,
[the applicant] whereas the latter was notified
of this fact in writing, but remained silent. Silence is equivalent
to consent
when there is a duty to speak. I accordingly hold that on
the probabilities, Rhekhuditse had acquiescence in the conduct of by
the appellant in the instruction given to the respondent to desist in
any further handling of the matter until the review was completed,
as
it had a direct interest in the matter."
[40]
I part ways with the High Court, on
whether the applicant's failure to reply specifically to the letter
constitute acquiescence
with the suspension of the second respondent
or that the applicant had a "duty to speak up". The
applicant addressed
an email to the first respondent. The judgment
creates the impression that the applicant did not react at all to the
letter of
suspension addressed to the second respondent. Be that what
it may; the letter of suspension which the first respondent addressed
to the second respondent, was copied to the applicant. The applicant
and the second respondent each were simply informed of the
unilateral
decision which had been taken by the first respondent to suspend the
second respondent. Sight cannot be lost that they
were entangled in a
dispute. There was no reason to believe that the applicant would have
consented,
ex
post facto,
with the
unilateral suspension of the adjudicator.
[41]
No duty has arisen with regard to the
contents of the letter "to speak." The silence on the part
of the applicant to the
assertion made in the letter cannot be
construed as an acceptance of the assertion or a waiver of its
rights. Both
Commaille
v Steyn
[21]
and
McWilliam
v First Consolidated Holdings
[22]
cases upon which the High Court relied, are authority for the broad
proposition that a party may accept an obligation by his silence,
but
it will depend upon the type of obligation, the particular
circumstances and the relationship between the parties.
[42]
This
court now has to deal with the facts put up by the applicant which
the High Court was unable to consider in the action. The
evidence of
the applicant is not substantially similar to the evidence which was
placed before the magistrate of the first and
second respondent and
which High Court considered on appeal. The defence put up by the
first respondent whether the second respondent
was suspended when he
delivered his final award or not, is a factual issue. This court, as
stated before, is not bound by the decision
of the High Court.
[43]
This
court is called upon to adjudicate the application on the facts put
before it, and not on the facts which emerged from the
judgment of
the High Court. This court is also not sitting as a court of appeal.
[44]
The
conclusion which I have reached is that the first respondent has
failed to show that the second respondent's appointment was
terminated or suspended in terms of its letter, dated 3 April 2017,
addressed to the second respondent. The impugned suspension
was
contractually unlawful and invalid. The first respondent never
applied to court for the removal of the second respondent, despite
a
threat to do so. Nor was any attempt made to set aside the award by
the second respondent which, according to the first respondent
was
invalid. The applicant, therefore, is entitled to enforce the award
in terms of clause 7.7 of the CIDB Procedure document.
[45]
This
court has a wide discretion to grant declaratory orders. The
existence and validity of the CIDB Procedure document was not
disputed. The validity of the final award of the second respondent
was disputed. That question was determined in favour of the
applicant. The applicant is entitled to a declaratory order to put
that issue beyond doubt between all the parties.
[46]
There is no reason why costs should not
follow the result. The Applicant requested that costs should be
awarded on a punitive scale.
However, the opposition was not
frivolous or unreasonable. Counsel for the applicant could not
advance any acceptable reasons why
the respondent should pay costs on
a punitive scale.
ORDER
1.
It
is declared that the decision of the second respondent dated 26 April
2017 is binding and enforceable between the applicant and
the
respondents in terms of clause 7.4 and clause 7.7 of the CIDB
Procedure document.
2.
The
first respondent is ordered to pay the applicant the amount of R507
804.57 as well as the amount of R203 429.27 (both amounts
are VAT
inclusive) as determined by the second respondent within 14 days.
3.
The
first respondent is ordered to hand the original Performance
Guarantee within 14 days from service of this order to the attorney
of record of the applicant.
4.
The
first respondent is ordered to pay the costs of the application.
GC
MULLER
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE
APPEARANCES
1.
For
the Applicant:
M Skhosana
2.
For
the Respondents:
S Kroeze
3.
Date
of hearing:
02 June 2020
4.
Date
judgment delivered:
11 June 2020
[1]
Hereinafter "the CIDB
Procedure document."
[2]
Hereinafter "the High
Court."
[3]
The amount in words in the order
is patently wrong. Nothing turns on that error in this application.
[4]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) 634H-635C;
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) par 26
[5]
Whether he conducted himself properly as adjudicator is in dispute.
[6]
The award is referred to as the final award to distinguish it from
the two interim reports that have been set aside.
[7]
2013 (6) SA 345
(SCA) par 4.
[8]
Mandatum
is a consensual contract between the mandator and
another, the mandatory, in terms whereof the mandatory undertakes to
perform
a mandate or commission for the mandatory. The principal
characteristic of the contract is that the mandatary undertakes to
do
something at the request or on the instruction of the mandator.
WA Joubert (ed) LAWSA Vol 17 (Part 1) LexisNexis (2009) 3
[9]
Arbitration is a private process for binding resolution of a dispute
through the decision of one or more private individuals
selected by
the parties to the dispute. Compared to other methods of third-party
intervention, it is distinguished from court
adjudication through
its private nature and from mediation or conciliation through its
binding character" per Buhring-Uhle
C.
Arbitration and
Mediation in International Business
(Kluwer Law International
The Netherlands) (1996) 39
[10]
2012 (4) SA 593
(SCA) para 18
[11]
Nkisimane
and Others v Santam Insurance
Co
Ltd
1978
(2) SA 430
(A) 433H-434A.
Ludidi
v Ludidi and Others
(658/2017)
[2018] ZASCA 104
(23 July 2018) par 29.
[12]
1963
(2) SA
555
(A) 562A-562D.
[13]
Bertram v Wood
(1893) 120 SC 177,180.
[14]
1935 AD 167.
Also
Amalgamated Engineering Union v Minister of
Labour
1949 (3) SA 637 (A) 661.
[15]
171.
[16]
1948 (3) SA 514
(A)
[17]
1949 (3) SA 83 (A).
[18]
87-88.
[19]
Shepard
v Mossel Liquor Licencing Board
1954
(3) SA 852 (C) 861.
[20]
No reference is made in the High Court
judgment of the letter or its contents.
[21]
1914 CPD 1100.
[22]
1982 (2) SA 1
(A); See Christie RH
The Law of Contract
6th ed
Butterworths (1996) 70-71 where both cases are discussed under the
rubric "Silence as Acceptance."