Mitsubishi Hitachi Power Systems Africa (Pty) Ltd v Murray & Roberts Ltd and Another

Mitsubishi Hitachi Power Systems Africa (Pty) Ltd (Mitsubishi) concluded a main construction contract with Eskom Holdings SOC Ltd for work on the Medupi and Kusile power stations. Mitsubishi in turn concluded subcontracts with Murray & Roberts Ltd (M&R) for portions of the works. Clause 11.3 of the subcontracts required Mitsubishi to pass on to M&R a proportion of any contractual benefits it received from Eskom that related to the subcontract works. M&R alleged that Mitsubishi and Eskom had concluded incentive or initiative arrangements under which Mitsubishi received benefits, and sought disclosure of those arrangements and the benefits received in order to assess its entitlement under clause 11.3. Mitsubishi refused disclosure, citing confidentiality obligations to Eskom and contending that M&R had no right to the information. After a Dispute Adjudication Board declined to order disclosure, M&R successfully applied to the High Court for disclosure. Mitsubishi appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs. The High Court order was substituted with a narrower order directing Mitsubishi to disclose only those portions of the incentive or initiative arrangements, and related information, that were relevant to M&R’s entitlement to contractual benefits under clause 11.3 of the subcontracts. Mitsubishi was ordered to pay the costs of the application and the appeal.

The case affirms that in South African contract law, a contractual entitlement to a share of benefits may imply a corresponding right to information necessary to assess and enforce that entitlement. It recognises disclosure as an incident of good faith and cooperative performance of contracts, particularly in complex construction and subcontracting arrangements.