MBABANE – Tornado Construction is alleged to have not received their retention certificate and monies owed, after completing the construction of the new Mbabane Police Station.
The company has since made an application with the High Court of Eswatini, seeking an order to have the certificate and money released to them. Tornado is the applicant in the matter, and the first respondent is Mpendulo Mvubu, who is the Quantity Surveyor at the Ministry of Public Works and Transport. The second respondent is the Ministry of Public Works and Transport; the third respondent is Kamanga & Associates; and the fourth respondent is Global Professionals Services (Pty) Ltd. The parties involved in the case have not yet responded to the applicant’s alleged accusations.
release certificate
Tornado is seeking an order directing the first, second and third respondents to issue the retention release certificate for the construction of the new Mbabane Police Station to them.
Tornado wants the certificate issued so they can claim the retention in the sum of E696 605.18, from the Ministry of Public Works and Transport. In the application, Tornado Construction (Pty) Ltd Director, Abner Shongwe said they entered into a written building contract with the Government of Eswatini through the Ministry of Public Works and Transport, for the construction of the new Mbabane Police Station. The contract sum for the project was E11 981 850.26. The contract also stated that the architects for the project were Global Professional Services (Pty) Ltd, and the quantity surveyor for the project was Kamanga & Associates.
Shongwe said they duly discharged their contractual duties and obligations as per the contract and concluded construction of the new police station in 2010, subject to an extension of time mutually agreed upon. Shongwe added that a final account was produced by Kamanga & Associates, the project’s quantity surveyors, on or around May 24, 2013, in accordance with the construction project’s practical completion and the expiration of the defect period, which was February 19, 2011. He said that signified the finality of the project and that their obligation had been fulfilled as per construction practise. “I am advised that given the nature of this matter, I am entitled to be granted the order sought herein, which is for the release of the retention certificate within seven (7) days of this order being granted,” added Shongwe. The applicant then wrote to the second respondent and duly requested the release of the retention in the sum of E696 605.18.
In response to the request by Tornado, the director alleged that the second respondent, through a letter dated June 4, 2015, duly acknowledged its indebtedness to them for the principal retention sum which it had withheld and requested that it be furnished with a retention release certificate to facilitate the necessary payment. “Subsequently, a meeting was convened by the second respondent with all the respondents herein who played a role in the construction of the new police station. The parties were called to the meeting by Mkhululi Mamba (Chief Building Officer). “In attendance at the meeting were the Quantity Surveyor of the Ministry of Public Works and Transport, Mpendulo Mvubu; the Director of Tornado Construction, Abner Shongwe; representatives from Kamanga & Associates; and representatives from Global Professional Services (Pty) Ltd,” he added. It was mentioned in the application that at this meeting it was agreed that in view of the certificate of practical completion and the final account having been issued after the defects period, the first and third respondents were to issue out the retention release certificate to facilitate the release of the retention money due to the applicant.
various engagements
“However, notwithstanding various engagements over the years, this directive has not been adhered to and consequently, the applicant has not been able to facilitate the release of its retention monies withheld by the second respondent due to the unjustifiable non-release of the retention release certificate,” mentions the application. Retention is the customary practise of withholding monies to cover defects and incomplete work, due from the payer to the payee in construction contracts that are deducted from stage payments during the construction phase and then released when the project is completed. The first half of the retention is paid when the project is completed, whereas the second half is paid following the expiration of the defect liability period. The purpose of retention is to ensure that the contractor properly completes the activities required of them under the contract. Retention can also be applied to nominated sub-contractors, and the main contractor may also apply retention to domestic sub-contractors.
