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[2017] ZANCHC 61
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Entsha Henra CC v Sol Plaatje Municipality and Another (410/2015) [2017] ZANCHC 61 (20 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
CASE
NO: 410/2015
DATE
HEARD: 10 OCTOBER 2017
DATE
DELIVERED: 20 OCTOBER 2017
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
ENTSHA HENRA
CC
Plaintiff
and
THE
SOL PLAATJE
MUNICIPALITY
1
st
Defendant
MVD
KALAHARI
2
nd
Defendant
Coram:
Olivier
J
JUDGMENT
Olivier J:
[1.]
The plaintiff, Entsha
Henra CC, issued summons against the 1
st
defendant, The Sol Plaatje Municipality, and the 2
nd
defendant, the firm MVD Kalahari.
[2.]
The issues to which I
will in due course refer arose from a contract in terms of which the
plaintiff would perform construction
work for the 1
st
defendant and the 2
nd
defendant would act as the Engineer for purposes thereof.
[3.]
The
terms and conditions applicable to the contract and the execution
thereof are contained in a number of documents, the most pertinent
of
which for present purposes are the
General
Conditions of Contract for Construction Works
[1]
,
to which I will in what follows refer as “
the
GCC
”.
[4.]
Also relevant for
present purposes are Section C 1.2 of the contract, which is headed
“
Contract
Data
”.
[5.]
Upon completion of the
construction work a payment certificate was apparently issued on the
basis that the amount/s in the schedule
of prices included value
added tax (“
VAT
”).
[6.]
The matter was then
referred to the 2
nd
defendant who concluded, and made a ruling to that effect, that the
prices indeed included VAT.
[7.]
Dissatisfied with this,
the plaintiff issued a dispute notice and the matter was referred to
Mr W F Bloem for adjudication as envisaged
in clause 10.5 of the
GCC. Mr Bloem ruled that the amount/s in the schedule did not
include VAT. This meant that the
1
st
defendant would be liable to pay the VAT to the plaintiff, but the
1
st
defendant then gave written notice in terms of clause 10.6.1 of the
GCC that it intended disputing the correctness of the decision
of the
adjudicator.
[8.]
The plaintiff
subsequently issued the summons already referred to. The cause
of action is basically that the adjudicator’s
ruling is final
and binding and on this basis the plaintiff claimed an order that the
2
nd
defendant issue a payment certificate duly rectified and that the 1
st
defendant make payment in accordance therewith, as well as
mora
interest on those
amounts. Costs of suit were claimed from the 1
st
defendant, and from the 2
nd
defendant only in the event of it defending the action.
[9.]
The 2
nd
defendant never filed a notice of appearance and has not played a
role in the pleadings and questionnaires that were subsequently
filed.
[10.]
In its plea the 1
st
defendant denied that the adjudicator’s decision was final and
pleaded that, in the event of notice that such decision was
going to
be disputed, the decision would only remain binding until revised by
a court. The 1
st
defendant relied upon the provisions of clause 10.6.1 of the GCC, to
which I will revert, and pleaded that it had given proper
notice as
required.
[11.]
The 1
st
defendant also filed a counterclaim in which it sought the setting
aside of the adjudicator’s decision and a declaratory
order to
the effect that the contract sum of R29 658 225.03 was
inclusive of VAT at the rate of 14%.
[12.]
In its plea to the
counterclaim the plaintiff basically denied that the adjudicator’s
decision could in terms of the contract
be reviewed or revised by a
court. It also denied the 1
st
defendant’s allegations regarding the issue of VAT, made
reference to the so-called Standard Conditions of Tender and relied
upon rectification of the contract insofar as it reflected that
prices would be inclusive of VAT.
[13.]
In reply to the 1
st
defendant’s plea to the counterclaim the plaintiff denied that
the Standard Conditions were applicable to the contract and
pleaded
that a statement by a representative of the 1
st
defendant to the effect that the sum in the plaintiff’s tender
excluded VAT, was “
patently
mistaken
”.
[14.]
The two main issues
that are discernable from the pleadings are whether the adjudicator’s
decision is reviewable in terms
of the contract and, if so, what the
agreement had been as regards VAT.
[15.]
At
this stage, and after a ruling in terms of Uniform Rule 33(4), the
only issue to be decided is whether the contract, upon a proper
interpretation thereof, provided that disputes arising from or in
connection with the contract would be referred to an Adjudication
Board, and not to a court or for arbitration, and that the
adjudicator’s decision would be final
[2]
.
[16.]
Several bundles of
documentary evidence were placed before me, but the issue to be
decided essentially revolves around the interpretation
of the
contract, the relevant parts of which form part of the documentation.
[17.]
The argument of Mr
Olivier SC, counsel for the plaintiff, was essentially that the
parties had in the Contract Data elected to choose
adjudication in
terms of clause 10.5 as the exclusive and final mechanism for the
resolution of disputes, while Mr Van Niekerk
SC, counsel for the 1
st
defendant, argued that the election in the Contract Data (of
adjudication as a mechanism of dispute resolution) pertained to only
the initial or so-called first level mechanism of dispute resolution
and did not exclude a so-called second level of dispute resolution
in
the form of the review of the adjudicator’s decision by either
an arbitrator or a court.
[18.]
The
“’
golden
rule’ of interpretation
(is
that)
the
language in a document is to be given its grammatical and ordinary
meaning, unless this would result in some absurdity, or some
repugnancy or inconsistency with the rest of the instrument”
[3]
.
[19.]
It
is also important to consider the meaning of provisions “…
having
regard to the context provided by reading the particular provision or
provisions in the light of the document as a whole…
”
[4]
.
[20.]
An
interpretation that would lead to a “
sensible
meaning is to be preferred to one that leads to insensible or
unbusinesslike results
”
[5]
.
[21.]
The provisions of
clause 10 of the GCC are really the crux of this matter and
sub-clauses 5 and 6, respectively relied upon by Mr
Olivier and Mr
Van Niekerk, should be considered in the context of the whole of
clause 10, the heading of which is “
Claims
and Disputes
”.
[22.]
Clause 10.1 deals with
claims by contractors for an extension of time and is irrelevant for
present purposes.
[23.]
Clause 10.2 is titled
“
Dissatisfaction
Claim
” and it
deals with the right to deliver a written dissatisfaction claim to
the Engineer, and with the latter’s ruling
thereon. I
have already alluded to the fact that the 2
nd
defendant had in the present matter ruled that the amount/s in the
schedule of prices included VAT, and it is safe to assume that
that
happened in terms of the provisions of clause 10.2.
[24.]
Clause 10.3 provides
for the issue of a “
Dispute
Notice
” in
the event of an unresolved claim, and for the referral of such a
dispute to adjudication in terms of clause 10.5, “
unless
amicable settlement is contemplated
”.
[25.]
A process of amicable
settlement of disputes and claims is provided for in clause 10.4.
It envisages an invitation to amicable
settlement by one of the
parties and, in the event of a rejection of the invitation, a failure
to respond thereto or of the attempt
to settle amicably being
unsuccessful, eventual referral of the dispute to adjudication;
clearly still as envisaged in clause 10.5.
[26.]
What is of some
significance is that clause 10.4.2 also envisages the possibility of
settlement negotiations after a process of
adjudication, and it
provides that if an attempt at amicable settlement should in such a
case fail, “
the
dispute shall be resolved by arbitration or court proceedings,
whichever is applicable in terms of the Contract
”.
Arbitration and court proceedings are clearly envisaged as 2
nd
tier forums, to be approached after the process in the 1
st
tier forum of adjudication. Furthermore the words “
whichever
is applicable
”,
as opposed to for example “
if
applicable
”,
clearly pertain to the two possible 2
nd
tier forums and to which of them would be the applicable forum in a
particular case, and are clearly not an indication that the
right to
2
nd
tier dispute resolution may in terms of a particular contract not be
applicable.
[27.]
Clause 10.5 provides
for the adjudication of a dispute, either by “
a
standing Adjudication Board
”
or by “
ad-hoc
(
sic
)
adjudication
”,
depending on which one the Contract Data eventually provided for.
[28.]
Clause
10.6 is headed “
Disagreement
with Adjudication Board’s Decision
”
[6]
.
Of specific relevance for present purposes are the provisions of
clause 10.6.1 and clause 10.6.1.1, which I quote in full:
“
10.6.1
Each 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 judgment,
whichever is
applicable in terms of the Contract
”
.
[29.]
Of significance is that
once again one finds the phrase “
whichever
is applicable in terms of the Contract”
in
the same context as in clause 10.4.2, and in apparent relation to the
applicability of either arbitration or court proceedings.
[30.]
Clause 10.6.3 provides
that, should the Adjudication Board fail to give its decision within
the applicable time period, “
either
party shall have the right to submit the dispute to arbitration or
court proceedings, whichever is applicable in terms of
the
Contract
”.
This would in my view, on a proper reading of clause 10 as a whole,
be the only instance where a dispute in respect
of which no decision
had been taken by an adjudicator, could be dealt with on arbitration
or in court proceedings.
[31.]
Clause
10.7 is headed “
Arbitration
”
and clause 10.7.1 provides that “
If
the Contract Data
provides
for determination of disputes by arbitration and a dispute is
still
unresolved, the matter shall be referred to a single arbitrator
”
[7]
.
[32.]
The
title of clause 10.8 is “
Court
proceedings
”
and clause 10.8.1 provides that “
If
the Contract Data
does
not provide
for the settlement of disputes by arbitration, and a dispute is
still
unresolved, the dispute shall be determined by court proceedings
”
[8]
.
[33.]
It is apparent that,
while clause 10.7 requires that the Contract Data should specifically
provide for the applicability of arbitration
proceedings for it to be
available as a forum, clause 10.8 does not contain the same
requirement in respect of a court as a forum.
The court will be
available as a forum in any case where the parties had not in the
Contract Data elected arbitration as a forum,
and by necessary
implication in my view also where the parties had not in the Contract
Data made any election at all in this regard.
[34.]
Clause
10.10.3, which falls under the heading “
Common
Provisions
”,
inter alia
provides
that “
The
arbitrator and the court shall have full power to…
reconsider
any decision of the Adjudication Board…
”
[9]
.
[35.]
Finally,
clause 10.10.1, which falls under the same heading, confirms “
the
right to institute
immediate
court proceedings in respect of
failure
by the Employer to pay the amount of a payment certificate on its due
date, or to pay any amount of retention money on its due
date for
payment
”
[10]
.
[36.]
The significance of the
use of the word “
immediate
”
is that, in cases referred to in clause 10.10.1, the parties would
not have to follow the route to court via
adjudication. The effect is
that in the case of a “
failure
”
to make timeous payment, as opposed to a case where a dispute is
involved, the Contractor would automatically be entitled
to approach
a court directly, without first having to resort to the Engineer or
adjudication.
[37.]
In
my view the whole scheme of clause 10 as a whole is that arbitration
and court proceedings would not,
in
the event of disputes
,
be available as first tier dispute resolution mechanisms, in other
words as forums where the initial consideration and determination
of
a dispute could take place, as opposed to forums where the result of
a first tier dispute determination are “
reconsidered
”
[11]
.
[38.]
The scheme or process
envisaged in clause 10, as a whole and apart from mere failures to
make timeous payment, is that a “
dissatisfaction
”
will be considered by the Engineer. In the event of a party not
agreeing with the Engineer’s ruling the “
dissatisfaction
”
becomes a “
dispute
”.
[39.]
When
a “
Dispute
Notice
”
is then delivered the procedure will be that, unless amicably
settled, the relevant dispute “
shall
be referred
immediately
[12]
to adjudication in terms of Clause 10.5
”
[13]
.
[40.]
The
provisions of clause 10 simply do not provide that a “
dispute
”
[14]
can be placed directly before an arbitrator or a court.
[41.]
This is the only
feasible explanation for the fact that the parties, in clause 10.10.1
of the GCC, deemed it necessary to record
that failures to make
payment on the due date (as opposed to disputes) could indeed be
taken directly to court.
[42.]
It is in my view also
clear from the wording of clauses 10.7 (Arbitration) and 10.8 (Court
proceedings) that neither arbitration
nor court proceedings were
envisaged as a first tier forum in respect of disputes. A
dispute can only land up before an arbitrator
or in court “
if
a dispute is still unresolved
”.
These words can, in view of the sequence that the different steps and
processes are provided for in clause 10, justify
no other inference
than that the intention had been to refer to disputes that remained
unresolved after the process of adjudication.
[43.]
This inference is
fortified by the clear meaning of the provisions of clause 10.6.1,
which specifically refers to the right to refer
a matter to
arbitration or to a court, but only in the event of a party
disagreeing with a decision made on adjudication.
[44.]
In the present matter
the Contract Data section is divided into three columns. In the
column on the left hand there is a brief
description of the issue
intended to be addressed, in the centre column the number of the
relevant clause of the GCC is reflected
and in the right hand column
what is agreed upon in this regard is recorded.
[45.]
In the present matter
the issue of disputes is addressed as follows on the second page of
the Contract Data section:
“
Settlement
of disputes to be
referred
to*
10.5
Court/Arbitration
Law 1965 (Law No 42/1965)
Adjudication
Board
…
…
*
Delete whichever is inapplicable
**
Information to be provided by the
Tenderer”
[46.]
The words “
Court
”
and “
Arbitration
Law 1965 (Law No 42/1964)
”
in the right hand column had clearly at some stage been struck
through. It is not clear whether the words “
Adjudication
Board
” were
already there at the time of the striking through, or whether they
were inserted then. Nothing really turns on
this.
[47.]
When regard is had to
the Contract Data sections of the other tenders of which copies have
been included in the plaintiff’s
bundles of documents it is
very clear that the striking through is identical in all the Contract
Data forms and the inescapable
inference is that it had already been
done by the time that the tenderers were required to sign the
Contract Data forms.
[48.]
It
is significant, when the Contract Data form in the plaintiff’s
tender is compared to those in other tenders, that the striking
through or deletion also appeared to be standard and already done in
the case of other aspects of the GCC. In this regard
reference
can be made to the particulars in respect of clause 8.6.1.2 of the
GCC and the issues of “
Special
Risk Insurance (Political riot insurance
)*”
and “
if
required, to be arranged by*
”
[15]
.
[49.]
As far as the issue of
disputes is concerned the Contract Data forms were therefore standard
forms that were presented to tenderers.
In fact, with the
exception of the particulars of the address, contact person and
telephone and fax numbers of the tenderer that
were inserted in the
form of writing, all the other particulars (which pertain to a
variety of clauses of the GCC) are typed and
clearly standard in the
forms.
[50.]
This has the
implication that the invitation to “
Delete
whichever is inapplicable
”
in respect of the referral of disputes was meaningless. The
forms in reality left the tenderers with no options to
delete as far
as the issue of the settlement of disputes was concerned. It
would also therefore appear as if the plaintiff
on all indications
did not in any way contribute to what appears in the Contract Data in
this regard.
[51.]
Mr Olivier developed
his argument regarding this part of the Contract Data as follows:
50.1
He argued that clause 10, as a whole, provided the choice of three
forums, either a court, or arbitration or adjudication,
and that the
striking through of the options of arbitration and court proceedings
in the Contract Data amounted to an express agreement
that disputes
would be resolved through adjudication, and that arbitration and
court proceedings, as envisaged in clause 10.6.1,
would not be
resorted to (Whether as first tier or second tier forum).
50.2
His argument was furthermore that, even if it could be said that the
right of referral to arbitration or to court had not been
excluded
through the deletions in the Contract Data, the words “
whichever
is applicable in terms of the Contract
”
in clause 10.6.1 would have required an already existing election
between arbitration and court proceedings, and that without
such an
election no right to arbitration or court proceedings could exist, or
at least be exercised. In the present matter
no such election
had been made, which according to Mr Olivier resulted in the contract
in effect not providing for either arbitration
or court proceedings,
not even as a second tier forum.
50.4
He furthermore argued that, insofar as there may be any ambiguity in
the contract in this regard, this should on the
contra
proferentem
principal
[16]
be interpreted
in favour of the plaintiff.
[52.]
The
contents of the Contract Data, as far as settlement of disputes is
concerned are not, in my view, in any way susceptible to
the
interpretation proposed by Mr Olivier
[17]
.
[53.]
Clause 10.5 deals
exclusively with adjudication. It does not, in itself, provide
for dispute settlement by arbitration or
court proceedings.
Clause 10.5 would not have provided a tenderer with the deleted or
struck through options of court proceedings
or arbitration in the
right hand column.
[54.]
Mr Olivier experienced
difficulty to explain why arbitration and court proceedings, as
methods of dispute resolution, would in any
event have been presented
as options alongside a reference to sub-clause 5 of clause 10 of the
GCC:
53.1
He initially suggested that the reference to clause 10.5 must have
been inserted in the centre column after the options of
court
proceedings and arbitration had been deleted, but was ultimately
constrained to concede that the particular document had
been
standardised and had been made available to all tenderers for
signature in this form.
53.2
Mr Olivier also argued that the particular part of the Contract Data
had effectively invited tenderers to accept adjudication
as the only
and final dispute resolution mechanism. He seemed to argue that
the options mentioned in the right hand column
would all have been
available as equal options and he repeatedly stated that the
tenderers basically had three choices of dispute
resolution, either
adjudication, or arbitration or Court proceedings.
[55.]
There is no merit in
this argument. It is clear from the scheme of clause 10 as a
whole, as already said, that arbitration
and court proceedings were
never intended to be first tier dispute resolution procedures.
[56.]
As
already indicated, a contractor would in any event be entitled to
adjudication in terms of clause 10.5. It would be superfluous
to record that in the Contract Data. Once a “
dissatisfaction
”
has not been satisfactorily resolved by the Engineer and escalates in
status to a “
dispute
”,
the only further step provided for in clause 10 of the GCC
[18]
would be a “
Dispute
Notice
”
and then adjudication.
[57.]
The
wording of clause 10.3.2 is also instructive in this regard. It
provides that, if a dispute notice has been given, “
the
dispute shall be referred
immediately
to adjudication in terms of Clause 10.5
”
[19]
.
It is common cause that such a notice was given by the plaintiff.
Clause 10.3.2 makes it clear that the dispute will
in such event be
considered on adjudication. Its clear wording does not leave
room for an interpretation that such a dispute
could also
“
immediately
”
(in other words instead of “
to
adjudication
”)
be referred to arbitration or to court.
[58.]
The only options
available at that stage would be to either elect adjudication by a
“
standing
Adjudication Board
”
or not, in which case the adjudication would be done by an
ad
hoc
appointed
adjudicator.
[59.]
Court proceedings and
arbitration are not the subject of clause 10.5 and are not, as I have
said, dispute resolution mechanisms
which could be considered as
alternatives to adjudication.
[60.]
Mr Olivier argued that,
by agreeing on Contract Data in which the references to court
proceedings and arbitration had been struck
through, the plaintiff
and the 1
st
defendant effectively agreed that those dispute resolution mechanisms
would not be available, be it on a first or a second tier
basis.
[61.]
Mr
Olivier at first readily conceded that this would have amounted to
the waiver of the right that clause 10 generally gives to
arbitration
or court proceedings as a second tier forum. When confronted
with the trite principle that proof of such waiver
would have
to be clear and unequivocal
[20]
,
Mr Olivier changed tack and argued that the parties were merely
agreeing on a method of dispute resolution and that this had not
amounted to the waiver of a right to any of the other two methods
that were not eventually chosen. This argument may have
had
merit if it could be said that the parties had three choices of first
tier dispute resolution procedures available and had
merely chosen
one. This is, however, not the case. Clause 10 of the GCC
made provision for the review of the decision
of an adjudicator, as a
second tier dispute resolution mechanism, and at least as far as the
latter mechanism is concerned the
parties would, by accepting the
deletion of court proceedings and arbitration, on Mr Olivier’s
argument have waived a right.
[62.]
The particular section
of the Contract Data form does not in my view, for reasons already
alluded to, provide sufficient proof of
an intention to waive the
right, set out not in sub-clause 5 of clause 10, but rather in
sub-clauses 6, 7 and 8 thereof, to have
the decision of an
adjudicator reviewed.
[63.]
The explicit reference
to sub-clause 5 in the Contract Data, and the absence of any
reference to sub-clauses 6, 7 or 8 with it,
militates against the
possibility that the parties, when considering that particular part
of the Contract Data form, contemplated
a waiver of the right to
review by an arbitrator or in court proceedings.
[64.]
Mr Olivier argued that
the Contract Data would have included, in its centre column, a
reference to sub-clauses 6, 7 and/or 8 of
clause 10 if the intention
had been to provide for a review of the adjudicator’s
decision. I disagree. It would
not have been necessary to
provide for this right in the Contract Data. It is a right
which the parties to the contract would
in any event have had in
terms of the GCC.
[65.]
Mr Olivier argued that,
even if it could be said that the Contract Data in its present form
had left intact the option of the review
of the adjudicator’s
decision, the fact would be that the parties would not have made an
election between arbitration and
court proceedings as a forum to deal
with it. Mr Olivier argued that the words “
whichever
is applicable in terms of the Contract
”
in clause 10.6.1 amount to a requirement that the contract reflect
such an election before a right to review can exercised.
[66.]
I disagree. When
viewed as a whole the wording of this sub-clause is not in my view
susceptible to such an interpretation.
It provides that either
party “
shall
”
have the right to disagree with the decision taken on adjudication
and “
shall
”
have the right to refer the matter to arbitration or court. The
words relied upon by Mr Olivier concern the choice
between
arbitration and court proceedings as two possible forums for review,
and in my view mean no more than that, if one of these
had indeed in
the Contract Data been chosen and decided upon, the reference for
review would have to be to that forum.
[67.]
If the parties had
intended to make the very right of review dependent upon the exercise
of an option one would, as already said,
have expected words like “
if
applicable
”
instead of “
whichever
is applicable
”.
[68.]
As already said the
absence in the Contract Data of an election in this regard would not
bar a party from having an adjudicator’s
decision reviewed, at
least by a court.
[69.]
In
any event, “
There
is a presumption against the deprivation of, or interference with,
common law rights, and in the case of ambiguity an interpretation
which preserves those rights will be favoured
”
[21]
.
[70.]
The fact that the
parties did not in the Contract Data in the present matter indicate a
preference between arbitration and court
proceedings would therefore
not justify the inference that they did not contemplate court
proceedings for purposes of review.
[71.]
It follows that the
question posed should in my view be answered in the negative. There
is no reason why costs should not follow
this result.
[72.]
The following orders
are therefore made:
1.
THE QUESTION
POSED IN TERMS OF THE RULE 33(4) ORDER OF 10 OCTOBER 2017, AS
AMENDED, IS ANSWERED IN THE NEGATIVE AND IT IS HELD
THAT, UPON A
PROPER INTERPRETATION OF THE CONTRACT IN THIS MATTER, IT DID NOT
PROVIDE FOR ADJUDICATION TO THE EXCLUSION OF ARBITRATION
AND COURT
PROCEEDINGS, AND IT IS HELD THAT THE ADJUDICATOR’S DECISION IS
THEREFORE NOT FINAL IN THE SENSE OF EXCLUDING THE
REVIEW THEREOF BY A
COURT IN TERMS OF THE CONTRACT.
2.
THE PLAINTIFF IS
ORDERED TO PAY THE 1
ST
DEFENDANT’S COSTS HEREIN.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For
the Plaintiff: ADV J W OLIVIER SC
(oio
Herbie Oosthuizen & Ass, c/o Engelsman Magabane Inc.)
For
the 1
st
Defendant: ADV J G VAN NIEKERK SC
(oio
Van De Wall & Partners)
[1]
Second Edition, 2010
[2]
The order proposed by counsel mistakenly referred to the decision
of the Arbitration Board as the decision of which the finality
had
to be decided, and when the Rule 33(4) order was made, that wording
was followed. This was, however, taken up with
both counsel
the day after that order was made and, insofar as it may be
necessary, that order is amended accordingly, to read
as set out
above.
[3]
Brink v Premier of the
Free State and another
[2009] 3 All SA 304
(SCA) para [11]
[4]
Natal Joint Municipal
Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) para [18]; also reported as [2012] 2 All SA 262
(SCA)
[5]
Ibid
;
See also
Metcash Trading
Ltd v Credit Guarantee Insurance Corporation of Africa Ltd
2004 (5) SA 520 (SCA)
[6]
The wording of the side-note to the particular sub-clause is
identical to that of the heading.
[7]
Emphasis provided.
[8]
Emphasis provided.
[9]
Emphasis provided.
[10]
Emphasis provided.
[11]
Compare clause 10.3.3 and para [34] above.
[12]
Emphasis provided.
[13]
See clause 10.3.2 of the GCC, to which I will revert in due course.
[14]
Or, for that matter, a “
dissatisfaction
”.
[15]
In exhibit
“A1” - pages 189 to 199, exhibit “A2” -
pages 437 to 438, pages 451 to 452 and pages 465 to
466.
[16]
Compare
African Products
(Pty) Ltd v AIG South Africa Ltd
2009 (3) SA 473
(SCA) para [12]
[17]
Not even applying the contra proferentem approach.
[18]
Barring “
amicable
settlement
”
[19]
Emphasis provided.
[20]
Compare
Hyde Construction
CC v Deuchar Family Trust and Another
2015 (5) SA 388
(WCC) para [65]
[21]
See
SA
Breweries Ltd v Food and Allied Workers Union and Others
1990 (1) SA 92
(A) at 99F - G