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2024
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[2024] ZALMPPHC 151
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Seokodibeng Properties Developer Elias Homes CC JV v MEC for Public Works & Infrastructure Limpopo and Another (7562/23) [2024] ZALMPPHC 151 (4 June 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
No: 7562/23
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED: YES/NO
SIGNATURE:
DIAMOND AJ
DATE:
4 JUNE 2024
In
the matter between:
SEOKODIBENG
PROPERTIES DEVELOPER //
APPLICANT
ELIAS
HOMES CC JV.
and
MEC
FOR PUBLIC WORKS &
FIRST RESPONDENT
INFRASTRUCTURE
LIMPOPO.
THE
HOD: DEPARTMENT OF PUBLIC WORKS
SECOND RESPONDENT
INFRASTRUCTURE,
LIMPOPO.
JUDGMENT
DIAMOND
A J:
[1]
This matter came before Kganyago J, on the 2
nd
November
2023, to make two arbitration orders court orders in terms of Section
31 of the Arbitration Act, 1965 ("the Act").
The court
ordered at that stage that the matter be removed from the roll, and
advised the Applicant that the Applicant should obtain
a single
consolidated award from the arbitrator to put the court in a position
to make a sensible court order.
[2]
The Applicant did obtain such an order on 8 December 2023.
[3]
The Applicant approached to the Judge President, on 14 December 2023,
for a preferential
hearing date, and on 30 January 2024, the Judge
President allocated the hearing date of 8 February 2024.
[4]
The Applicant served a notice of set down, for the particular date on
the Respondent,
but up until that stage the application was
unopposed.
[5]
On that date, the Applicant had applied in terms of
Section 31
of the
Arbitration Act, 1965
, that the consolidated award of the arbitrator
be made an order of court.
[6]
On that date, however, counsel appeared on behalf of the First
Respondent and indicated
that the First Respondent wished to oppose
the application.
[7]
Counsel who appeared on behalf of the Applicant, Mr E.T Mashile was
surprised by the
development.
[8]
Counsel appearing on behalf of First Respondent also indicated that
he was present
in court when Kganyago J made the order on 2 November
2023 and indicated that the Applicant did not present the content of
the
proceedings of 2 November 2023 accurately to the court.
[9]
This was also a surprising attitude since it was based on what had
transpired in the
court on 2 November 2023, that the judge president
allocated a preferential trial date for the Applicant.
[10]
Be that as it may: after a short discussion in the court it was
agreed, by the parties, that
the First Respondent shall be given the
opportunity to oppose the application and an order was made, based on
the agreement of
the parties, that the Applicant shall file a
supplementary founding affidavit, if it wished to do so before or on
22 February 2024
and the First Respondent would file an answering
affidavit on 14 March of 2024 while the Applicant would be entitled
to file replying
affidavit before on 28 March 2024. It was ordered
that both counsel were to file Heads of Argument before or on 8 April
2024, and
the matter was postponed to 9 April 2024.
[11]
The matter could eventually not proceed on 9 April 2024, due to a
medical emergency involving
the court, and the matter was eventually
before this court on 2 May 2024 after the date had been agreed upon
by both parties following
communication with the Judge's Registrar.
[12]
On 2 May 2024, Mr. E.T Mashile for the Applicant, appeared and moved
the application. There was
no appearance for the First Respondent.
[13]
The Applicant did not file a supplementary affidavit, nor did the
First Respondent file an opposing
affidavit or Heads of Argument. The
Applicant filed Heads of Argument.
[14]
Consequently, the application was once again unopposed.
[15]
The events leading up to this application having been brought, are
simple: the Applicant initiated
arbitration proceedings in a dispute
with the First Respondent, in terms of a written arbitration clause,
which is contained in
a construction contract.
[16]
During the arbitration proceedings, certain pre-trial procedures took
place, and an arbitration
award was made ordering the First
Respondent to discover certain documents. This order was however made
in very general terms.
[17]
When the First Respondent failed to comply with this order, the
Applicant once again approached
the arbitrator for a second order
detailing in detail which documents the First Respondent needed to
discover. The First Respondent
also failed to comply with this order.
[18]
The Applicant thereafter brought an application in terms of Section
31 of the Act, after which
the matter was enrolled for 2 November
2023 and after which the events described above unfolded.
[19]
The basis for the application is, based on the founding papers, not
contentious: in terms of
Section 31 of the Act, an award
[1]
,
may be made an order of the court after which the order is
enforceable by the normal processes of the court. The award made by
the arbitrator complied with the requirements of Section 24 of the
Act, that is the award is in writing and signed by the tribunal.
[20]
There appears to be no reason why the arbitration award should not be
made an order of court.
[21]
The picture that does appear from the founding papers, is simply one
of inexplicable failure
by the First Respondent to comply with the
arbitration award. Given the fact that it had requested an
opportunity to oppose this
application and still failed to do so, no
conclusion can be drawn other than that it purposefully tries to
delay the finalisation
of the arbitration proceedings.
[22]
What is most troubling, is the fact that counsel that appeared for
the First Respondent alleged
in court that the Applicant prosecuted
the application based on a misinterpretation of the proceedings
before Kganyago J.
[23]
When allowed to explain this to this Court, the First Respondent
simply failed to do so, once
again without explanation.
[24]
I am of the view that a punitive cost order against the First
Respondent is justified.
I
consequently make the following order:
(a)
The order made by arbitrator Emeka Ogbugo, made and signed by him on
8 December 2023, and
which is attached hereto as Annexure "
A
",
is made an order of court in terms of Section 31 of the Arbitration
Act, 1965 (Act 42 of 1965).
(b)
The First Respondents is forthwith ordered to comply with Annexure
"
A
".
(c)
The First Respondent is ordered to pay the costs of the Applicant on
a scale as between
attorney and client, which costs shall include the
cost of the day for 8 February 2024 as well as the 2
nd
May
2024. Counsel's fees for the 2
nd
May 2024, shall be on
Scale "
B
" as provided for in Rule 69 (7), of the
Rules of this Court.
DIAMOND
AJ
Acting
Judge of the High Court
Limpopo
Division, Polokwane
APPEARANCES:
HEARD
ON
: 2
nd
MAY 2024.
JUDGMENT DELIVERED
ON
:
4 JUNE 2024.
This
judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time for the
hand-down of the judgment is deemed to be 4 JUNE 2024.
FOR
THE APPLICANT
: Mr. E.T. Mashile
INSTRUCTED
BY
: VTM SEKUKUNI ATTORNEYS
mahlasekhan@gmail.com.
ANNEXURE
''A''
IN
THE ARBITRATION HEARING
HELD
AT PRETORIA
Case
No.:A150-0706/2023
In
the matter between:
SEOKODIBENG
PROPERTY DEVELOPER//
THE CLAIMANT
ELIAS
HOMES CC JV
And
THE
MEC FOR PUBLIC WORKS,
1
ST
RESPONDENT
ROADS
& INFRASTRUCTURE, LIMPOPO
THE
HOD: DEPT. OF PUBLIC WORKS,
2
ND
RESPONDENT
ROADS
& INFRASTRUCTURE, LIMPOPO
CONSOLIDATED
ARBITRATION INTERIM ORDER TO PRODUCE DOCUMENTS
HAVING
READ THE DOCUMENTS FILED OF RECORD AND HAVING CONSIDERED THE MATTER
It
is hereby ordered
1.
That the Interim orders of 10 July 2023 and 31 July 2023 are hereby
consolidated.
2.
That the respondent produced to the Claimant and to the Arbitrator,
within 14
calendar days of the date of this order, a copy of each of
all the documents listed hereunder:
2.1
Copies of all periodic progress payment certificates issued to the
Claimant for the whole
period of the contract between the Parties
under Tender No.: LDPW-B/ 05513 - Construction of New Rebone Health
Center, District
of Waterberg,
2.2
Proof of payment of all the monies, as stated In paragraph 16 of the
Respondent’s
Statement of Defense,
2.3
Copies of all Site Meeting Minutes of Tender No.: LDPW-B / 05613,
2.4
Copies of all the Minutes of the meetings of the Project Steering
Committees,
2.5
Copies of the Closing Report of the Project by the Department of
Public Works,
2.6
Copy of the. Handing Over Report of the Project, by the Department of
Public Works, Limpopo,
to the Department of Health, Limpopo,
2.7
Copy of the Service Level Agreement entered into between the
Department of Public Works
and the Claimant,
2.8
Copy of the signed Principal Agreement / Contract (JBCC Series 2000)
dated January 2003,
2.9
Copies of all Variation Orders dated 04 December 2009: number 1 in
the amount of R4 032
650.00, number 2 in the amount of R38 558
547.69. Also furnish a detailed breakdown of the variation orders
referred to above,
2.10
Copies of the Variation Order referred to in the letter from the
Department of. Health and Social Development
dated 07 March 2011
(hereto attached marked "B")
2.11
Detailed findings of the Independent Quantity Surveyor referred to in
the above-mentioned letter dated 07
March 2011.
DATED
AT PRETORIA ONTHIS 8
TH
DAY OF DECEMBER 2023.
Sgd
EMIKA
OGBUGO: ARBITRATOR
(under
the Rules of the Association of Arbitrators
Southern
Africa for the Conduct of Arbitrations -2021 edition )
21
Troika Crescent
Sliver
Stream Estate,
Silver
View Ridge
Pretoria
[1]
In terms of section 1 of the Act, the term "award"
includes an interim award.