Stocks & Stocks (Cape) (Pty) Ltd v Gordon and Others NNO
| Jurisdiction | South Africa |
| Judge | van Dijkhorst J |
| Judgment Date | 04 December 1991 |
| Court | Transvaal Provincial Division |
| Hearing Date | 04 December 1991 |
Van Dijkhorst J:
This is an application for an order that effect be given to three opinions of three mediators and that payment be effected in terms thereof to the applicant by the respondents.
G The applicant and the respondents entered into a contract on 3 November 1989 in terms whereof the applicant was to construct a single-storey clinic, a single-storey toilet block and an office block with basement parking on erven 67869, 67871, 67872, 67876 and 67879 Wynberg, Cape Town.
The procedure for the settlement of disputes between the applicant and H the respondents in terms of the contract is set out in clause 26 thereof. This reads as follows:
If any dispute or difference shall arise between the employer or the architect on his behalf, and the contractor, either during the progress or after completion of the works or after the determination of the employment of the contractor under this I contract, the abandonment or breach of the contract, as to the construction of the contract, or as to any matter or thing arising out of or in connection with the contract or its determination, or as to the withholding by the architect of any certificate to which the contractor may claim to be entitled, the architect shall determine such dispute or difference by a written decision given to the employer and the contractor within 14 days of a written J request so to do. The said decision shall be final
Van Dijkhorst J
A and binding on the parties, unless either party within 14 days of the receipt thereof by written notice to the architect disputes the same, or should the architect fail to give his decision within the periods herein set out, such dispute or difference shall be and is hereby referred to the employer and the contractor for further consideration and agreement.
Should the parties fail to reach such agreement within a further B period of 14 days, the matter shall within a further period of 14 days be referred by either party without legal representation for opinion to a mediator selected by the contractor from a panel of three persons nominated by the chairman for the time being of the Association of Arbitrators, who in nominating such a panel shall pay due regard to the nature of the dispute. The mediator shall, within a period of 28 days of receipt of the written representation of the parties, give his opinion in writing on the C matter and furnish the employer and the contractor each with a copy thereof. The costs of such mediation including the costs of the mediator shall be determined and awarded by the mediator. The said opinion shall be final and binding on the parties unless either within 14 days of receipt thereof disputes the same by written notice to the other.
D Should either the employer or the contractor dispute the mediator's opinion the employer and the contractor shall meet within 14 days of the declaration of that dispute to resolve the same and if that shall not be possible to agree as to the method by which the said dispute shall be resolved, that is to say by arbitration or litigation, provided that if they are unable to agree upon the method, the dispute shall be resolved by the submission of the dispute to the arbitration of a single E arbitrator. The opinion of the mediator shall be binding upon the parties and shall be given effect to by them until the said opinion is overruled in any subsequent arbitration or litigation.
The arbitrator shall be chosen by the contractor from a panel of five persons who are willing to act as such, nominated by the chairman for the time being of the Association of Arbitrators, at F the written request of the employer who shall request him in nominating the panel to pay due regard to the nature of the dispute. Within 14 days of receipt of the notice advising the names of the said panel, the contractor shall select one such person to act as the arbitrator. The dispute, whether referred to arbitration or litigation, shall not, save on the question of the issue or withholding of a certificate or any question arising out G of or in connection with clauses 3 or 4 of the articles of agreement, be opened until after...
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The Certainty of Settlement
...ed settlement 6 Boulle & Nesic Mediation 507. In the Sout h African ca se, Stocks & Stoc ks (Cape) (Pty) Ltd v Go rdon and Others NNO 1993 1 SA 156 (T), a co nstruction co ntract provided for r eferral of dispute s to a “mediator”, who was obliged to give h is opinion which wa s final and b......
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Böhnke NO. v JW Blue Construction Management
...this clause" [36] The approach in the Blue Circle case, however, was expressly rejected by Van Dijkhorst J in Stocks & Stocks v Gordon 1993 (1) SA 156 (T) where it was "The scheme of clause 26 of the contract is conducive to finality and dispute resolution. The last provision of clause 26.3......
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Tension Overhead Electrification (Pty) Ltd v Ircon International Limited
...issues Wepener, J made reference to a judgment of Van Dijkhorst, J in Stocks and Stocks (Cape) (Pty) Ltd v Gordon and others NNO 1993 (1) SA 156 (T) ("Stocks and Stocks") which reads as follows at 160B-D "In principle, I have no objection to giving effect to an agreement in terms of which i......
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Stefanutti Stocks (Pty) Ltd v S8 Property (Pty) Ltd
...circumstances. [24] Some of the relevant cases are the following: 24.1 Stocks and Stocks (Cape) (Pty) Ltd v Gordon and others NNO 1993 (1) SA 156 (T): The contract in this matter, which appears to have been an ad-hoc agreement, (which had been concluded during the 1980's) referred to mediat......
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Böhnke NO. v JW Blue Construction Management
...this clause" [36] The approach in the Blue Circle case, however, was expressly rejected by Van Dijkhorst J in Stocks & Stocks v Gordon 1993 (1) SA 156 (T) where it was "The scheme of clause 26 of the contract is conducive to finality and dispute resolution. The last provision of clause 26.3......
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Tension Overhead Electrification (Pty) Ltd v Ircon International Limited
...issues Wepener, J made reference to a judgment of Van Dijkhorst, J in Stocks and Stocks (Cape) (Pty) Ltd v Gordon and others NNO 1993 (1) SA 156 (T) ("Stocks and Stocks") which reads as follows at 160B-D "In principle, I have no objection to giving effect to an agreement in terms of which i......
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Stefanutti Stocks (Pty) Ltd v S8 Property (Pty) Ltd
...circumstances. [24] Some of the relevant cases are the following: 24.1 Stocks and Stocks (Cape) (Pty) Ltd v Gordon and others NNO 1993 (1) SA 156 (T): The contract in this matter, which appears to have been an ad-hoc agreement, (which had been concluded during the 1980's) referred to mediat......
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Tubular Holdings (Pty) Ltd v DBT Technologies (Pty) Ltd
...to R v Philips Dairy (Pty) Ltd 1955 (4) SA 120 (T): dictum at 122C applied Stocks & Stocks (Cape) (Pty) Ltd v Gordon and Others NNO 1993 (1) SA 156 (T): England D Carillion Construction v Devonport Royal Dockyard [2006] BLR 15 (CA): dictum at 20 – 22 applied. Case Information CW Jordaan SC ......
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The Certainty of Settlement
...ed settlement 6 Boulle & Nesic Mediation 507. In the Sout h African ca se, Stocks & Stoc ks (Cape) (Pty) Ltd v Go rdon and Others NNO 1993 1 SA 156 (T), a co nstruction co ntract provided for r eferral of dispute s to a “mediator”, who was obliged to give h is opinion which wa s final and b......