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JUDGMENT
WRIGHT J
1. On 30 June 2014, Eskom appointed Manyeleti to provide cleaning services at
Eskom’s Matla power station. The NEC3 Term Service Contract governed the
parties’ rights and obligations.
2. Under option W1.1 of the contract, “ Any dispute arising under or in conne ction with
this contract is referred to and decided by the Adjudicator.” Under W1.3(1) “
Disputes are notified and referred to the Adjudicator in accordance with the
Adjudication Table. “
3. Under W1.3, an adjudication table sets out when and to whom disputes are to be
referred. It is common cause that the present case falls under “ Any other matter “
as tabled. Either party may refer such matter to the adjudicator “ Between two and
four weeks after notification of the dispute to the other Party and the Service
Manager . “
4. Clause W1.3(2), provides for the times for referring of disputes to be extended by
the Service Manager in certain circumstances. The clause continues “ If a disputed
matter is not notified and referred within the times set out in this contract, neither
Party may subsequently refer it to the Adjudicator or the tribunal. “
5. In due course, Manyeleti demanded money of Eskom. Eskom did not pay.
6. In October 2021, Manyeleti launched provisional sentence proceedings against
Eskom. Manyeleti relied on written certifications of assessment by the Service
Manager read with tax invoices sent by Manyeleti to Eskom. Numerous claims total
over R2 million in capital. Interest and cost s are sought.
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7. Eskom filed an affidavit , dated 24 January 2022 opposing provisional sentence.
Ms P Dlamini, a Senior Legal Advisor raises the point that Manyeleti never referred
a dispute for adjudication. She says that Manyeleti is time barred. She says t hat
Manyelet I, aware that it is time barred, simply launched the provisional sentence
proceedings in an attempt to bypass clause W1.
8. Ms Dlamini also raises the defence that the documents supporting the provisional
sentence claims do not accord with contrac tual requirements. Ms Dlamini also
points to what she says are incorrect claims for interest.
9. In reply, Mr Lomola for Manyeleti says that there was never any dispute. He says
the a mere failure to pay by Eskom does not amount to a dispute which could be
referred to an adjudicator. He says that, at the latest, Eskom raised a dispute, if
dispute it is, in the answering affidavit.
10. Mr Lomola effectively admits the non-alignment of documents annexed to the
provisional sentence summons with contractual requireme nts. He refers to
contract price adjustment documents, attached to the replying affidavit. Mr Lomola
concedes that the claims for provisional sentence should exclude contract price
adjustments and that “ The remainder of the dispute could then be ventilate d at the
trial of the matter . “
11. On 18 February 2022, Manyeleti’s attorney wrote to Adv B Leech SC, a person
listed in the contract as a possible adjudicator, asking him if he would adjudicate.
A statement of claim was attached. In effect, the provisional sentence claim was
sent to Mr Leech. Mr Leech accepted on 22 February 2022.
12. On 30 June 2022, Eskom’s attorneys wrote to Manyeleti’s attorneys saying that
Eskom was not indebted to Manyeleti an d that “ our client is happy with Adv Leech
as the adjudicator and therefore suggest that both parties finalise the necessary
contract with the adjudicator and commence with the arbitration .”
13. On 31 March 2023, Manyeleti launched an application to compel Esk om to file i ts
heads of argument, practice note, chronology and list of authorities. This
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application was set down for 29 May 2023 , seemingly on the unopposed motion
roll. Apparently , this was the provisional sentence case. On that day, the matter
was remo ved from the roll as it had become opposed by Eskom.
14. On 25 May 2023, Eskom launched an application. It seeks that Manyeleti’s
provisional sentence summons be dismissed , alternatively that the provisional
sentence proceedings be stayed pending the outcome o f the adjudication
proceedings before Mr Leech .
15. On 30 June 2023, Manyeleti launched an application. The precise wording in the
notice of motion was clarified in argument by Mr D Hodge for Manyeleti. What
Manyeleti seeks a re order s, if the court is inclined to stay the provisional sentence
proceedings pending adjudication, that the disputes raised by Eskom in the
affidavit opposing provisional sentence be referred to adjudication by Mr Leech.
Mr Hodge made it clear that if I was inc lined to stay the entire claim, that the entire
claim be sent to a djudicatio n. Manyeleti seeks too, an order that Eskom do
timeously all things necessary to have the adjudication, and any possible appeal
by way of a tribunal hearing, disposed of timeously. Manyeleti seeks also an order
that the referral of the dispute by Manyeleti’s attorneys to Mr Le ech on 18 February
2022 stands as a valid contractual referral under clause W1. Also sought are
extensions of time periods relating to the adjudication and to a possible
subsequent appeal by way of a tribunal hearing. It is also sought that in the event
of Eskom defaulting on its obligations relating to the adjudication or appeal tribunal ,
Manyeleti would be entitled to enrol the provisional sentence proceedings on five
days’ notice. Manyeleti seeks also the costs of the application to compel heads of
argument and related documents.
16. In my view, there was no dispute prior to the launching of the provisional sentence
summons. Ms Dlamini, in her opposing affidavit r aises, for the first time, defences
to the provisional sentence summons. She d oes not suggest that any dispute had
been articulated by Eskom prior to her affidavit.
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17. There are in essence three main things before me now. Ma nyeleti’s claims for
provisional s entence, Eskom’s request for a stay of the provisional sentence
proceedings and Manyeleti’s request that if there is to be a stay , Eskom gets on
with the adjudication. Manyeleti also seeks the costs of the application to compel.
18. Manyeleti sent i ts claim to Mr Leech. Eskom has not yet filed its statement of
defence in the adjudication. Manyeleti accuses Eskom of delaying the matter.
19. Both sides, in the correspondence referred to above, expressly agreed to Mr
Leech’s appointment. In so doing, they elected to go the adjudication route.
20. During argument before me, Mr N Mahlangu for Eskom said that the matter is
properly before Mr Leech. Mr Mahlangu argued that what I should not hear are the
main claims and those for interest.
21. Regarding costs, the quest ion should be reserved in the three main applications
and in the application to compel. After Mr Leech has adjudicated, either side may
apply for such costs as they seek in the present High Court litigation.
22. My order below deals in composit e manner with the disputes before me.
ORDER
1. The provisional sentence proceedings are stayed pending adjudication and any
consequent tribunal hearing.
2. The adjudication referral by Manyeleti dated 18 February 2022 to Adv Leech SC
stands as a referral to adjudication before Adv Leech SC .
3. Prayers 2 to 5 of Manyeleti’s counter -application dated 30 June 2023 are granted.
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mahlangu@rsabar.com
Instructed by Ledwaba Mazwai Inc
012 346 7313
bonganis@ledwabamazwai.co.za
tumisom@ledwabamazwai.co.za