NEWSLETTER MAY 2019 – EXCITING NEW DEVELOPMENTS AT AM Theron INC

NEWSLETTER May 2019 Issue 01 __________________________________________________________ EXCITING NEW DEVELOPMENTS AT AM Theron INC We are excited to announce that as of March 2019, Johan Loots joined our team at AM Theron Inc. as director. Johan, a Pretoria born attorney, specializes in Commercial, Civil and General Litigation, especially in Insolvency Law and Rehabilitations. Johan was appointed …

Construction Law – Governance of the architectural professions as a whole and the legislative framework determining inter alia architects’ scope of practice and registration requirements

1. In terms of the Council for the Built Environment Act, 43 of 2000 (hereinafter referred to as “the Built Environment Act”), a “registered person” means a person registered in terms of any of the professions’ Acts. These professions’ Acts are defined as the following: 1.1 The Architectural Profession Act, 2000. 1.2 The Project and Construction Management Professions …

Construction Law – Certain instances where the NHBRC could be held liable by a home owner for the rectification of major structural defects in a new home

INTRODUCTION: 1. In the unreported matter of Stergianos v National Home Builders Registration Council 2012 JDR 1982, the Plaintiff, Mr Stergianos, issued summons against the National Home Builders Registration Council (“NHBRC”), alleging that the NHBRC is obliged to remedy the defects evident in his home. 2. In our law the Housing Consumers Protection Measures Act 95 of …

Construction Law – The nature of on-demand guarantees

1.  In construction contracts, on-demand guarantees or unconditional performance bonds are a means of guaranteeing the performance of the contractor to its employer.  2.  On-demand guarantees are similar to letters of credit or promissory notes payable on demand. 3.  In Lombard v Landmark & Others  the following was held: “… The guarantee creates an obligation to pay upon …

Construction Law – Homebuilders must register with the NHBRC before commencement of building works to claim payment

1. The judgment in the matter of Cool Ideas 1186 CC (“Cool Ideas”) v Anne Christine Hubbard (“Hubbard”) & Minister of Justice and Constitutional Development confirms finally that an homebuilder is not entitled to receive compensation for a house constructed for a housing consumer unless registered in terms of the Housing Consumer Protection Measures Act.  BACKGROUND …

Construction Law – The Binding Nature of Interim Adjudication Awards

In the matter of Stefannuti Stocks vs S8 Property the Court reconfirmed the enforceability of an adjudicator’s decision by court prior to final arbitration.  It also confirmed that an agreement between the parties that a decision is binding and shall be given effect to without delay, unless and until it is revised, requires immediate implementation. Stefannuti …

Construction Law – Where the employer fails and/or refuses to make payment of a certified amount to the contractor

The standard JBCC Principal Building Agreement (“the Agreement”), more specifically Clause 31.1, determines that the principal agent should issue an interim payment certificate each month until the issue of a final payment certificate. The Agreement defines a “payment certificate” as a document issued by the principal agent on a monthly basis certifying the amount due …

Construction Law – Liability of the Agent to Compensate Contractor for its loss in terms of the JBCC Principal Building Agreement

In the matter of Hyde Construction CC v Blue Cloud Investments 40 (Pty) Ltd 2011 JDR 0954 (WCC) the Court had to decide whether a contractor can succeed with a delictual claim against an agent to compensate the contractor for its loss. The main dispute arose between the contractor and the first defendant, the employer, …

Construction Law – Substance is key in Notifications of Claim

The leading role in the execution of the contract as “Engineer” (under the GCC) or “Principle Agent” (under the JBCC) requires frequent decisions and rulings on the activities on site.   This function is also often underestimated and can attract significant liabilities. Professionals in the construction and engineering industry are often appointed as the Engineer …

Construction Law- Calling up Guarantees…or are they suretyships?

Insurers, guarantors, contractors and employers should take note of two recent judgments from the Supreme Court of Appeal developing the law governing Construction Guarantees. The first, Dormell Properties 282 Cc V Renasa Insurance Co Ltd And Others is a matter where the employer made a claim on the guarantee against the guarantor, following upon the …

Construction Law – Contractor’s Lien and the Bona Fide Possessor

A lien can be described as the common law right of retention of property to secure payment for its improvement.  In a construction dispute, it is often available to the contractor to secure payment for work executed on a building site where the employer fails to make payment for building work executed. This general principle was …

Construction Law – Final Certification and Defences thereto

The issuing of a final certificate in terms of a building contract carries with it certain legal consequences for Employers and Principle Agents (normally Architects, Quantity Surveyors or Engineers). In the case of Ocean Diners (Pty) Ltd V Golden Hill Construction the Court clarified the legal position. These consequences depend in the first instance on …

Construction Law- Considering Prescription – The Construction Law Perspective

INTRODUCTION As in all legal disputes, extinctive prescription is an important factor to be considered when evaluating the merits of a claim and formulating a defence. Construction law cases, in many instances, involve not only complex contractual relationships, but also difficult technical aspects. Determining the date on which prescription starts to run involves careful factual …