First recorded by John of Salisbury in the twelfth century and attributed to Bernard of Chartres.
The applicant is a joint venture partnership of contractors who were employed by the respondent to carry out piling and lateral support work on the Gautrain rapid rail link project. The terms of employment in relation to the execution of the work was governed by a standard form Conditions of Contract for Construction issued by the international Federation of Consulting Engineers First Edition as amended by the Particular Conditions of Contract agreed between the parties.
A dispute arose and the parties implemented the dispute resolution procedures provided for in the contract and Adv Jordaan SC was writing a will in vacuo the sole adjudicator. On 27 July he gave his decision and directed that the respondent pay to the applicant the sum of R8 The applicant seeks enforcement of the DAB decision alternatively an order that the respondent issues an interim payment certificate in the amount of R9 In particular the respondent contends that once a notice of dissatisfaction is given then the parties are required to engage one another in attempting to settle the matter amicably failing which the matter must go to arbitration.
Allied to this is the contention that the dispute resolution process has not been completed and the application to court is premature.
It is therefore evident that recourse is had to the document as a whole to writing a will in vacuo if there is ambiguity or absurdity or other repugnancy; the enquiry is triggered even if the word or phrase in contention is itself dear and unambiguous.
The DAB dispute resolution process in respect of a particular issue, including the amount that ought to be certified for an interim draw, occurs while the contractor continues to perform the balance of its construction obligations under the contract.
It is therefore not a process that occurs once the contract has been performed or upon its termination for any other reason including cancellation.
It is self-evidently a means to ensure that the parties continue with the contractual relationship in a non- adversaria! In my view it is unnecessary to refer to the clauses from which this is to be gleaned. It permeates the essence of the dispute resolution provisions which run into some five pages of printed text of which arbitration is but one contemplated process.
Moreover key provisions of the dispute resolution clause clause 20 were amended by two pages of text.
In the amended form the essential portions read; " The other Party may within 28 days of receiving a submission to the DAB forward a written reply thereto to the DAB for its consideration prior to its issuing its decision, Within 84 days after receiving such reference The decision shall be binding on both Parties, who shall promptly give effect to it unless and until it shall be revised in an amicable settlement or an arbitral award as described below.
Unless the Contract has already been abandoned, repudiated or terminated, the Contractor shall continue to proceed with the Works in accordance with the Contract However, unless both Parties agree otherwise, arbitration may be commenced on or after the twenty-eighth day after the day on which notice of dissatisfaction was given, even if no attempt at amicable settlement has been made.
It is common cause that the respondent gave notice of dissatisfaction with the DAB decision but stated that it wouid be fruitless to settle the matter amicably and that the matter should proceed directly to arbitration.
The applicant considered that the issue could be resolved amicably. The period within which settlement negotiations could occur before the arbitration process became effective has expired. Although some subsequent overtures were made to resolve the issue amicably this has not eventuated and the parties continue to implement the dispute resolution procedures.
In my view the underlined portions of the provisions cited earlier make it clear that the applicant was entitled to receive cash flows in accordance with the outcome of a favourable DAB decision on a monetary claim.
The benefit gained by the respondent was that the applicant could not withhold performance of its obligations but was obliged to carry on with the works even if a DAB finding was not in its favour. In the construction industry cash flow for the contractor and ensuring completion of the works for the employer are essential.
The DAB provision is clearly intended to provide an expedited process of dealing with disputes as and when they arise, including the adequacy of interim payment certificates.
The DAB decision is not final but the obligation to make payment or otherwise perform under it is. In the most elementary way the DAB process ensures the interim solution of an issue which requires performance and requires that the decision is implemented.
The key to comprehending the intention and purpose of the DAB process is that neither payment nor performance can be withheld when the parties are in dispute. In order to give effect to the DAB provisions of the contract the respondent cannot withhold payment of the amount determined by the adjudicator, and in my view is precluded by the terms of the provisions of clause 20 and in particular clauses In my view it was precisely to avoid this situation that the clauses were worded in this fashion.
In my view this is a straight forward case based on the reading of the contract and the underlying rationale for requiring the immediate implementation of the DAB decision.
This court is required to give effect to the terms of the decision made by the adjudicator. The DAB decision was not altered and accordingly it is that decision which this court enforces. The following order is made: The Respondent is to pay interest at the rate of Write what you mean clearly and correctly.
References in classic literature? In vacuo, the parts are regular, and can be derived from the (imaginary) root according to the laws of grammar, i.
Latin terms and phrases in math. Mathematics is an ancient discipline, and consequently it has picked up a good deal of terminology over the years that is not commonly used in ordinary discourse. Esor Africa (Pty) Ltd/ Franki Africa (Pty) Ltd Joint Venture v Bombela Civils Joint Venture (Pty) Ltd (12/)  ZAGPJHC (12 February ).
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