MDA Law
Establishing a Force Majeure under clause 19.1 (iii) of SANRAL FIDIC – Enforcing the Interdict
March 30, 2023
Contractors are well aware by now, that in order to be granted relief under Clause 19.1 (iii) of SANRAL FIDIC, a Contractor must satisfy five additional obligations in order to establish that a riot, commotion, disorder, strike or lockout, not caused by the contractor’s employees as a force majeure “event” in terms on the conditions of contract. The additional obligations are the following:
(1) The contractor has met and engaged persons responsible for the event, and has recorded their details, grievances, the organisations involved, all threats made; and has requested the persons responsible cease all unlawful conduct; and
(2) The contractor has proof of the event; and
(3) The contractor has reported all threats and unlawful conduct to the South African Police Service; and
(4) The contractor has brought an urgent application to the court on an ex parte basis that correctly identifies the respondents and defines the unlawful conduct to be interdicted; and
(5) The contractor has ensured that the court order is enforced.
Putting the complexities of that entire process aside for a moment, it is important to understand how a court order is obtained, against whom it must be obtained and how it is enforced.
The applicant (Contractor) must first ascertain whom he needs to interdict. It will, of course, be the persons who are committing the acts of disruption to the Contractor’s site, however, order to interdict these persons, the Contractor needs to accurately identify, and cite them in the court papers. The task of identifying the perpetrators may not be an easy one. The Contractor must take an active role in this process but should also make use of his Community Liaison Officer and social facilitators, if any, who should be privy to more information. The process of identifying and act of recording the grievances of the perpetrators concerned go hand-in-hand. Once the grievances and identities of the concerned people are recorded, the Contractor can, if necessary, proceed with the next step in interdicting the disruptive conduct.
Once the application papers have been prepared, the court will be approached on an ex parte basis. This means the applicant will apply to court to interdict the respondents without first giving them notice of the application. There will be at least two court hearings. The first hearing will seek interim or temporary relief and if the court grants the interim relief, it will do so in the form of a “rule nisi” (an interim order with a return date. The matter will be brought before the court (i.e. on the return date) where the respondents against whom the interim order was granted, will be given an opportunity to show good cause why a final order should not be granted. Should neither party appear on the return date, the rule nisi will lapse. In other words, the interim relief will no longer enforceable.
If the court grants the interim relief, the contractor would need to ensure that the interim order (rule nisi) is served, by the sheriff of the court, on each of the respondents. Proper service of the order is an integral part of enforcement thereof.
If the final order is ultimately granted, that order would again need to be served on each of the respondents. The application must, accordingly, be continuously prosecuted and enforced by the Contractor.
Should a respondent fail to comply with the order the contractor has must take further steps to enforce the court order:
The contractor may institute a contempt of court application which may take the form of an application to compel compliance with the court order. The order sought, generally, includes an directive ordering the respondents to comply with the interdict and in the event that they do not, an order for the payment of a fine and/or temporary imprisonment.
If the respondents still fail to comply with the interdict thereafter, the contractor may have a writ of commitment for contempt of court issued, which authorises the arrest and detention of the respondents. This does, however, depend on the wording of the order itself.
The following flow diagram shows the simplified step by step process of the court application required by the Particular Conditions of Clause 19.1 of SANRAL FIDIC:
INSERT FLOW DIAGRAM
- Identify the respondents
- Urgent ex parte application to court (interim relief granted)
- Serve interim order (rule nisi) on the respondent/s
- Final order granted on return date (or at a subsequent hearing if necessary)
- Serve final order on all respondents via the sheriff of the court
- Contempt of Court application;
- Writ of commitment of contempt to be issued by the court and arrest to be made by sheriff.
Conclusion:
The abovementioned Particular Conditions place very onerous obligations on the contractor and fulfilling those obligations can be difficult and costly, however, the contractor agrees (or accepts) those conditions when he tenders for the work. The contractor, therefore, must follow the entire process to ensure that a riot, commotion, disorder, strike or lockout etc can be considered a force majeure event for the purposes of the SANRAL FIDIC contract.
