Aveng said the contract contained a provision for a penalty-free period, during which it was agreed that Fifty Seven on Maude would not levy any penalties for the first 60 days of any delay to the achieving of practical completion by the agreed date.
The contract was terminated by Aveng and by Fifty Seven on Maude — each relying on its own basis for termination — on January 6 2020. The termination is the subject of a further dispute between the parties and the liabilities arising therefrom.
“Aveng’s position is that the employer repudiated the contract, and that Aveng is entitled to be paid for the work performed by it up to the date of termination,” Aveng said.
Fifty Seven on Maude levied penalties at the rate of R450,000 per day from May 1 2019 to January 6 2020.
“Aveng paid (while fully reserving its rights) all of the penalties levied by the employer and there are no further penalties claimable, or due, or payable.
“Having paid all of the penalties with reservation of its rights, Aveng then initiated dispute proceedings for the recovery of the penalties paid for the penalty free period (being 60 days from 30 April 2019),” Aveng said.
Aveng said the nub of the issue is that the appointed arbitrator in the matter made a finding on the so-called date for the practical completion which was in fact not a matter before the arbitrator and in effect unilaterally changed the practical completion date to February 28 2019.
Aveng said it considered this to be a finding outside the arbitrator’s jurisdiction.