National Provident Fund
Construction Swaziland (Pty)Ltd.
Plaintiff Mr. P. Flynn
Defendant Mr. C. Maphanga
is a judgment on a special plea. The plaintiff sues for payment of
E420 000 with interest. The claim arises from the alleged breach of a
building contract. The contract, which was in writing, and followed a
standard form, provided for the Defendant to complete the erection of
apartments and garages on the plaintiff's property in Mbabane. The
parties also provided for payment of the contract price A copy of the
contract is attached to the summons.
works have been completed, and the amount payable on completion has
dispute arises from defective workmanship or materials used, which
the plaintiff alleges became manifest thereafter. The amount claimed
represents the cost of
tiling, which lifted. Defendant has repudiated Plaintiffs claim on
the merits, but has also raised a special plea.
its special plea, the Defendant relies on the provisions of Clause 26
of the agreement. Clause 26 records the agreement of the parties to
refer disputes between them relating inter alia to the performance of
the parties of their obligations under the agreement initially to the
architect for decision. If the contractor is not satisfied with the
architects ruling he may require an arbitration.
wording of the referral to arbitration is materially the same as is
to be found in other contracts of this nature, which follow the
standard form. The disputes which are to be the subject matter of
arbitration are those, among others, arising between the Employer
(the plaintiff in this instance) and the Contractor (the Defendant).
The subject matter of such disputes may be as to the construction of
the contract or any matter or thing arising thereunder. This wording
is clearly wide enough to include the present dispute.
Stocks & Stocks (Gauteng) (Pty) Ltd V A & P Electrical Cc
1998 (4) Sa 266 (W).
plaintiff has not replied to the special plea and no evidence has
been led of circumstances which would make it proper for me to refuse
the stay of proceedings sought by the Defendant The discretion I have
in the matter is one to be exercised judicially and "there
should be compelling reasons for refusing to hod a party to his
contract to have a dispute resolved by arbitration.
Metallurgical and Commercial Consultants (Pty) Ltd v Metal Sales
(Pty) Ltd 1971 (2) SA 388(W).
opposing the defendant's plea, the plaintiffs counsel has argued that
as the contract does not provide for a liability period for latent
defects so that the present claim has to be dealt with under the
common law. The defendant seeks to infer from this, that the present
claim is not one arising under the contract. This is an argument,
which has only to be stated for its flaw to be apparent. The
plaintiffs claim is for damages for breach of the building contract
in terms of which the Defendant was obliged to apply proper
workmanship and appropriate material.
accordingly uphold the special plea with costs and order that the
action be stayed pending the referral to the architect and
defendant's reaction to his ruling.