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A Brief Overview of Adjudication, Arbitration, and Mediation in South Africa

 

This article is directed toward contractors, subcontractors, or service providers who may have questions regarding their recourse under the suite of construction contracts when things go wrong.  A number of small companies in the built environment are generally unaware of what they might be entitled to in order to claim compensation or time and therefore avoid financial dire straits.  I have set out this article as a simple overview and introduction to the adjudication, arbitration, and mediation processes that one may expect in the South African built environment.

 

The four common construction contracts utilized in South Africa are the GCC, NEC3, FIDIC, and the JBCC.  Each contract has a slightly different process for dispute resolution.  This will likely be referenced in your tender document, and it would be a good idea to spend a little bit of money to buy the relevant contract so you have a copy on hand.  You will need to review each particular contract’s dispute resolution section to better understand each one’s requirements.[1]

 

Please note, however, at all times it is critical that you are aware of the time-barring provisions, ie when notices must be submitted, because a failure to abide by such provisions within the prescribed time period may prohibit you from referring the matter to adjudication for resolution.  For example, you may need to submit a notice that you intend to claim within 30 days of an event arising.  Should you fail to do this in time, then you may not be allowed to refer a matter to dispute resolution and obtain compensation or time to which you may have been entitled.  Therefore, it is important that you are aware of these time limiting clauses in YOUR specific contract, as they all differ slightly or may have been amended in the provisions of the tender.[2]

 

In any event, let’s assume you submit a claim for additional compensation and the engineer or principal agent assesses the claim and ultimately rejects it.  You clearly disagree and would like an independent arbiter to make a determination.  Your contract will then set out a time period within which you must notify the engineer or principal agent of your disagreement and that you would like to refer the matter to dispute resolution.  Note, it is important that you submit your disagreement with the engineer or principal agent’s decision within this time period.

 

The first step in resolving a dispute for an aggrieved party is typically a process called adjudication.[3]  Briefly, adjudication is a contractual dispute resolution process - meaning simply that the parties have agreed to a set of steps in the contract to resolve the dispute on a preliminary basis.  This process entails, either by agreement or a third party, the appointment of an adjudicator who will then review the evidence submitted to him or her and make a determination.  The key to this process is speed and the exchange of money in order to keep the contract and construction program moving.  So, it is important that the parties compile their submissions with some level of speed and efficiency.  The timing of adjudications and arbitrations is set out further below.

 

Consequences of Adjudication

 

At the end of adjudication, after a determination has been made to resolve the dispute, should the parties disagree with the findings of the adjudicator, then they may refer the matter to arbitration.[4]  This means that an adjudication determination is not necessarily final.  It becomes final if the parties do not refer the matter to arbitration within a certain period, however.  Therefore, adjudication is an interim measure with the potential of becoming final and binding.  Again, this is because the purpose of adjudication is speed and monetary relief, not necessarily a perfect, fully ventilated solution.[5]

 

The safety net then is arbitration.  If a party is unhappy with the result, either they feel the adjudicator got it wrong, amongst any number of other potential concerns, then they have recourse in arbitration.[6]  There may exist very narrow instances where the adjudicator’s determination may be considered invalid, but this is not likely.[7]  An example might be where he has answered a question that was not put to him – which is referred to as “exceeding” his jurisdiction.[8]  However, courts are loath to insert themselves into a review of an adjudicator’s determination and find that an adjudicator indeed exceeded his/her jurisdiction.[9]

Adjudication determinations are enforceable in the high court – even if incorrectly decided by the adjudicator.  The justification for this apparent oddity is respect for a party’s right to make agreements.  Parties have agreed to a process and this should be respected and enforced.  Simply put, parties must stick to their promises.  What they promised in this case is that in the interim an adjudicator may resolve their dispute and they will abide by his/her determination until they have it finally resolved in arbitration, if necessary.[10]

 

A party who has been awarded money in adjudication can immediately go to court and obtain a court order for payment from the other party.  South African courts have repeatedly upheld adjudication determinations as enforceable in court.[11]  The one drawback here is that it may take time, many months, to navigate the high court process, especially if the matter is opposed.  In the UK, there are special construction courts to deal with this scenario on a speedy basis, and instead of a statute dealing with adjudication,[12] South Africa should really look to create its own construction related courts for the same reason.  This would speed up the process for both parties should enforcement be required and such disputes not find resolution in adjudication.  Nevertheless, the enforceability of a determination gives more clout to adjudication proceedings which make it a worthwhile endeavour, as opposed to the potential of failed mediation, as addressed below.

 

Arbitration and Its Differences

 

The next step in the process, if the parties’ disagreement persists, is arbitration.[13]  Arbitration is different than adjudication in many ways, although a few key things a subcontractor or contractor should note are, as follows:

 

• Arbitration is not an “appeal” process.[14]  Although, it may seem like an appeal to adjudication, at least in the sense that the parties will have another chance to ventilate their views.  The arbitrator, however, will not be restricted in what s/he can consider.  The process starts afresh and the arguments (including any new arguments) will be re-heard all over and material documentation, new and already submitted, will be provided.[15]  In a way, it may be better than an appeal, as it is unlimited by arguments at the lower level, so to speak.

 

• There may be an evidential hearing in which parties can admit evidence through a somewhat formal hearing with direct and cross examination of witnesses.  It is unlikely that there was a full hearing in which evidence was actually led in adjudication proceedings.  Remember, adjudication is supposed to be a speedy process, so while there may be a “hearing” to help the adjudicator answer questions, it is highly unlikely that s/he would call for one in which witnesses testify.

 

• Arbitration is a more final dispute resolution process.  I say “more” final because there are instances in which an arbitrator’s award may be reviewed and set aside, or an award will not be enforced by a court.[16]  But, for all intents and purposes, an arbitral award is final and binding on the parties and one should not expect an opportunity to appeal it.  What’s more, the arbitrator is allowed to make a mistake regarding his or her application of substantive law.  That is, the courts will not interrogate an award and overturn it on the basis that the arbitrator misapplied the law.  Even when s/he makes such a mistake, the parties will likely have to accept it.[17]

 

• Arbitration has more rules than that of adjudication, including rights and obligations of the arbitrator and/or parties as set out in the Arbitration Act of 1965.[18]  In addition, the contract will likely stipulate the rules of arbitration, such as those of the Association of Arbitrators or the Arbitration Foundation of South Africa.[19]  These rules are to be read and utilized in conjunction with the Arbitration Act and relevant case law.

 

• Costs are awarded.  The losing party, in all likelihood, will need to pay costs to the winning party, at least to the extent that they have lost.  This is not an automatic feature of adjudication but is an aspect of arbitration that must be dealt with.  And, while the arbitrator has discretion to award these, the general rule is that costs follow the result.  So, if you lose, you may be paying the other side’s legal fees.[20]

 

An advantage of arbitration, as opposed to court proceedings, is that this process can be relatively quick.  However, to ensure that the proceedings are carried out more efficiently, one must choose arbitration rules and NOT high court rules.  This is a mistake many advocates and lawyers overlook on behalf of their clients or in their discretion nullifying what most consider a key advantage of arbitration.  Another advantage is that the parties are free to choose their arbitrator, as is sometimes the case in adjudication – but this seldom happens.  Finally, the parties can agree on the rules and avoid some of the more onerous rules of court.  This again should lower costs but also speed up the process.

 

One other issue I have come across is that parties do not nominate well qualified arbitrators but rather some type of legal counsel.  This does not necessarily mean they know how to run an arbitration or that they are skilled in the field.  Ideally, one should be looking for the following in an arbitrator:

 

• Firmness in his/her approach – this will avoid time wasting by a party employing endless or irrelevant argument and attempting to derail the proceedings (this appears to be an actual strategy I have come across and should never be tolerated);

 

• An understanding of the context or industry within which the dispute has arisen – this being important for the fact that there will be certain procedures/norms that will not then require further explanation as would be required for a lay person, wasting more time and money;

 

• A solid understanding of some basic aspects of law and the ability to apply the law – the latter part being more important because if s/he does not know the law, as long as the parties are fairly represented the arguments will be presented and s/he can then read the law and make an assessment; and

 

• Fairness.  It is important that an arbitrator treat the parties fairly and give them equal opportunity.  For example, to avoid bias, an arbitrator should not give one opponent unlimited time to argue and waste the parties’ time.  While that may indicate a willingness to hear one’s argument, there are limits to this.  And, when an arbitrator fails to curtail such proceedings, it may very well mean s/he is biased or has given one side far more engagement.  Not only must justice be done, it must be seen to be done.

 

It is easier said than done to find the above in an arbitrator.  Nevertheless, the parties ought to attempt to look for individuals who possess these skills.  If an arbitrator demonstrated these skills in a previous arbitration, it would not be a bad idea to recommend that arbitrator again for appointment.  I would only state one caveat – the use of the term senior counsel is not likely to produce an incredible arbitrator.  The parties should emphasize demonstrated skill (history) and verifiable reputation – not title, such as senior counsel when reviewing appointment.

 

In the end, usually a third party appoints someone from the industry when parties do not find each other, so even if the parties fail to choose someone together, they will likely get someone who has enough industry knowledge to understand the circumstances of the dispute better than most judges and they have been trained in arbitration proceedings as well as some key aspects of the law.

Finally, be aware, however, that arbitrators (and adjudicators for that matter) do make mistakes.  Old judges can fall asleep in proceedings, and arbitrators without a background in construction, for example, will likely struggle to understand the facts of the matter, the numbers of an assessment, or refuse to measure anything on a drawing, if they even understand the drawing.  I have seen those with a seemingly good background to settle a dispute struggle when there is a large final account to be reconciled.  They may also make mistakes in terms of the law, such as allowing inadmissible evidence to be heard, possibly affecting one’s thought process and/or award.  These mistakes are binding on the parties unless they amount to a procedural irregularity.[21]  This rule has to do with the provisions of the Arbitration Act and the parties’ choice to refer their dispute to arbitration and the principle in South African law of party autonomy.  In short, this is the forum the parties chose; therefore, they must live with the results.

 

Legal Representation

 

A party is not required to have legal representation for either adjudication or arbitration proceedings.  However, I would weigh up the value of the claim before determining whether some type of representation should be retained.  Each matter is different because of the information at play and assessment required by a representative prior to making submissions to an adjudicator or arbitrator.  It is important that one present a clear and understandable claim to an adjudicator to avoid further time wasting and a better chance that your claim will be awarded.  Adjudicators tend to defer where they have to make a tough decision or the information is not properly presented or easily understood.  If they have to review more than one drawing to confirm measurements or actually calculate values using measurements, for example, do not be surprised when they simply side with the principal agent or engineer and refuse to change the initial decision which led to the dispute.  The burden of proof is on the claimant to demonstrate that the original decision should be changed in its favor.

 

It is counter-productive and antagonistic to submit confusing statements and present unclear argument for not only the other side, but also the adjudicator.  To avoid this, I would recommend some type of consultant who can competently assist you through the process and help define the issues clearly and how they should be resolved.  A background in engineering or construction will undoubtedly be useful and increase the speed at which they will be able to assist you.

 

A consultant should have a solid understanding of key legal principles involved, even at the adjudication stage.  Some key legal concepts and aspects in construction disputes are contract interpretation (such as the Shifren principle and the parol evidence rule, which is not only misunderstood by arbitrators – but also abused by counsel), the equity principle, the prevention principle, and the formation of contracts/agreements.  It also helps to have access to case law and know how to look for it.  Because South Africa has limited case law in construction, sometimes one may find helpful cases in the UK Technology and Construction Courts.  Note, these cases are persuasive and not binding, however.  No arbitrator or adjudicator should “blindly” follow those cases and what they say.  Although, it is important that one look to these principles to bolster their position where possible.

 

Representation at arbitration can vary significantly.  Sometimes an arbitration will mirror the adjudication process and remain relatively short with the same or similar evidence and documentation provided at adjudication stage.  It may not even require a hearing, in which case the need for leading evidence does not arise.  It is unlikely that one would truly need legal counsel for such representation.  However, in a more complex matter, where aspects of law play a more prominent role in the leading of evidence or development of argument, a claims consultant may not be an appropriate choice as a representative.  This is because an engineer with limited legal competence may find himself in deep water pretty quickly when legal argument becomes the focus of the matter or applying the law to the facts of the matter.  You may find your consultant misapplying the law or unable to counter valid legal assertions from the other side.  This could significantly weaken your case, as the arbitrator should be attempting to apply substantive law (correctly) to resolve the dispute.

 

Timing of Adjudication and Arbitration

 

Adjudication should not take much more than 2 months or so.  The process should be somewhat accelerated for a quicker result.  However, this may depend on the circumstances and more time could be taken to resolve the dispute, if necessary.  It is also possible that the timeline is prescribed and the parties have agreed not to amend them.[22]  That is, the parties may amend the timelines to something they mutually agree or to provide the adjudicator more time to make his determination.  Typically, the parties will have a pre-adjudication meeting and agree to a schedule of submissions and a date for a final written determination.  If a new schedule of deadlines is not agreed to, then they must adhere to the timelines set out in the contract.[23]

 

When parties look to agree to a timeline, I normally recommend 2 weeks or less to have a submission before an adjudicator.  This will likely mean the respondent will also then have 2 weeks to respond.  An adjudicator will in turn need between 2-4 weeks to provide the determination.  This is just a general timeline and a number of factors or aspects may result in slight amendments, such as 1 week for a reply or a hearing to clear up issues.  I have, however, spent over 100 hours on a submission of a claim before, so it all depends on the case at hand.  Consequently, each situation can be quite different with varying amounts of relevant information available.  And, each client may have different issues preventing them from moving faster thereby affecting the time required.  Nevertheless, the goal should be to move toward a resolution reasonably quickly.

 

These deadlines will also depend on the particular dispute and questions the adjudicator has.  Some disputes will not require any hearing while other disputes might.  A good adjudicator will attempt to balance the process, if the parties have agreed to amend the timeline, by allowing a party to make further submissions within a reasonable period.  It is important to note that an adjudicator is not required to endlessly entertain submissions.  In fact, s/he is more tied to what the contract has set out or the parties have agreed as a contractual requirement than an arbitrator.  An adjudicator is not necessarily free to change such a schedule of his own volition.  This may also mean that adjudication might not provide an opportunity to fully air all the facts and some prejudice could arise.[24]  This does not, however, inevitably nullify the determination.[25]

 

Arbitration, on the other hand, is not necessarily tied to any strict timeline.  The arbitrator will have more discretion to amend the process to enable a party to present its position.  What becomes more critical is that the rules of natural justice are applied.  This means that the parties must be given a fair opportunity to present their case and also respond to the other side’s submissions.  A good arbitrator will look to balance this with the objective of efficiency so as to render arbitration an effective dispute resolution process.  One key deadline in arbitration is that an arbitrator must provide an award within four months of the hearing – not appointment.[26]  This is prescribed in the Arbitration Act, but can be amended by the parties.  Most of the time, this period is waived in the preliminary hearing with the arbitrator and will not apply.

 

Mediation as Compared to Adjudication and Arbitration

 

Mediation is the process by which parties look to negotiate and settle their dispute through the use of a mediator.  This process is not mandatory and, in a sense, has no teeth.  Nevertheless, it is prescribed in the Professional Client Consultant Services Agreement (“PROCSA”) for instance.[27]  Often it is also a precursor to arbitration in commercial agreements.  Should a party not be interested in participating, likely the one in the wrong and with the money or in possession, there is very little that can be done to resolve it through mediation.  It’s also possible that neither side thinks that they are in the wrong and therefore mediation is not suitable.

It is worth noting that if the parties believe mediation has a real prospect of success, then there is nothing to stop them from entering into a negotiation and postponing or staying adjudication or arbitration.  Because mediation is wholly reliant on the willingness of parties to reach a settlement and it is completely voluntary, it is not clear why one would require this to be in a contract as a first step.  That is, parties are always free to agree to anything and amend their contract, including a settlement.  There is no need to write that down as though they did not know they could do it.  Mediation finds itself in the same boat.  To mandate it when a party may not have any interest, however, appears non-sensical and largely a waste of time.  Particularly where the parties are diametrically opposed and there is very little prospect of a successful ongoing relationship.

 

The main reason for this view is that generally mediation is a voluntary process and one that requires each party to proceed in good faith to attempt to resolve the dispute.  A mediator’s goal is to explore avenues to assist the parties to find agreeable terms of settlement.  If one party obstructs the process, delays, or does not want to fully participate, the mediator is virtually powerless to bring that party back to the table.  While PROCSA mandates that the mediator provides a written, reasoned opinion, it does not state whether this is binding until revised by arbitration.  This then begs the question as to the point of a mediator’s opinion and the process in PROCSA.  It may very well be wrong and fail to persuade either party on the merits of their position.  The JBCC only prescribes mediation as a process available to the parties and does not require a written opinion or any form of resolution via mediation.[28]

 

The mediator will likely have absolute discretion to determine how the proceedings will go.  I generally advise that the parties still submit, at the very least, written submissions setting out their dispute or their versions to help clarify the issues.  The mediator will then hold a mediated hearing and help the parties to identify and discuss issues in the hopes of agreeing to some type of settlement, even if in part.  These communications and proceedings are without prejudice and cannot be used against the parties in later proceedings, such as arbitration.

 

The parties will also likely have an opportunity to discuss aspects of the matter with the mediator without including the other side or even with the other side.  This is distinctly different than adjudication and arbitration where communication with the decision maker without including the other side would be considered an irregularity and serious misconduct.

 

There will likely be break away sessions/rooms during a well-mediated hearing to allow parties to discuss proposals or discuss counter proposals and approaches to resolving the dispute.  The parties would also be able to use the mediator to present questions or issues to the other side, as well as speak in confidence with the mediator regarding advice on proposals.

 

Enforceability of mediation is debatable and will really depend on the wording of the contract.  For example, as already mentioned PROCSA’s appears to be uncertain, at best, in terms of its enforceability.  I have seen adjudication proceedings amended to “mediation proceedings”, albeit without any real change to the adjudication process.  This then becomes a mediation in name only and more like an adjudication and enforceable in that respect.  In such instances, as opposed to PROCSA’s mediation, the written determination that results from the process, although called a mediated finding, may be viewed and treated like an adjudication determination.

 

Frankly, if a party believes it can resolve the issue, then good representatives will at least be able to propose a negotiation and attempt to settle in good faith removing the need for a mediator altogether.  Nevertheless, as humans, we sometimes require mediation in writing to force this consideration.

 

Court as the Last Step

 

Finally, some contracts, after either adjudication or mediation, may prescribe court as the final arbiter of the dispute.  This only means that one will now need to retain an attorney and an advocate to present one’s dispute before a judge.  This presents a few aspects of concern, but may not be avoided if that is what the contract prescribes.  For example, many in the legal community are well aware of what the Plascon-Evans rule means, but when asked this question in a recent judicial services commission hearing, a potential high court judicial candidate could not answer it, begging the question as to why she was even nominated.  If that is the level of competence one may expect from the bench it raises serious concerns how such a judge will deal with a bill of quantities and the interpretation of a contractual term that required not only written submissions to be assessed, but also oral evidence to be led.  This concern has no doubt contributed to the rise of adjudication and arbitration, amongst other shortcomings in our courts.

 

More importantly, the cost of having an attorney charge exorbitant fees for seemingly mundane tasks will take its toll on the claimant.  If the attorney does not have a full understanding of the issues, s/he will need to rely heavily on an advocate who also may not have a full grasp of construction issues but is well versed in the court’s rules.  In the end, these factors can lead to huge costs with very little by way of results or financial relief.  My advice in this regard would be to retain someone who can demonstrate to you the clear issues in YOUR case and explain to you how those will be presented to a judge or addressed in court.  If your attorney or advocate cannot do this for you early on, then they are not well-qualified and will cost you not only money, but also a successful outcome.  Do not be afraid to challenge your representatives and demand explanation of the process.  They do, after all, work for you and, frankly, they should respect that and be readily available to answer any and all your questions, particularly when it is your future that is at stake.

 

Conclusion

 

This article is a simplified overview of what one can expect from adjudication, arbitration, and mediation in South Africa.  However, each claim will be heavily fact dependent in light of the applicable principles of law.  Most good consultants will not charge you for preliminary advice on a matter.  Moreover, they should work with you to ensure costs are saved and the process is efficiently carried out.  For example, skilled individual practitioners should not cost you so much that using their services renders adjudication or arbitration out of reach.  It is a mistake to think you cannot obtain competent assistance in such matters at affordable rates.  Moreover, they should be able to estimate how much time will be required to submit a statement of claim or a reply after a preliminary review of your matter and agree rates and budgets within which they can work.

 

It is highly recommended that if you do have questions regarding what steps you should or could take in your construction project to contact a good consultant who can at the very least provide some guidance on a way forward for you.

 

Paul Bellin consults on construction & manufacturing contracts and related disputes.  He represents parties in adjudication, mediation, and arbitration proceedings, as well as matters before the High Court.  He is an admitted advocate of the High Court of South Africa and an admitted attorney in the United States.  He holds a double major from the University of Wisconsin-Madison in Engineering and Geology/Geophysics and is a qualified EIT in the State of New Mexico.

 

#Arbitration #Mediation #Adjudication #ConstructionLaw #ConstructionLawExpert #AskAnAdvocate

 

[1] See GCC 2010 at section 10; NEC3 2006 at section W1; FIDIC Redbook at section 20; and JBCC Ed. 6.1 2014 (Principal Building Agreement) at section 30.  For ease of reference, I will only refer to these four versions for purposes of this article.

[2] Time bars may be contained throughout your contract, but there is always a time-barring provision with respect to a notice of a claim to enable the project to react and reduce the impact of such delays, whether that be for time or cost.  Refer to GCC at para. 10.1.1.1; NEC3 at para. 61.3; FIDIC at para. 20.1; and JBCC at para. 23.4.2

[3] See GCC at para. 10.5; NEC3 at para. W1.1; FIDIC at para. 20.4; and JBCC at para. 30.2.  Note, the JBCC in a way caters for either adjudication or arbitration and may explicitly provide the option to the parties to go straight to arbitration.

In addition, some contracts may require or allow for amicable settlement.  This is not something that is required of a contract for parties because, in law, parties are free to negotiate settlement at any time.  Mandated settlement attempts, however, can often be fruitless and a waste of time if one of the parties has very little leverage in the mediation/negotiation and the other party is unreceptive to their position.

[4] See GCC at para. 10.6.3 or 10.7; NEC3 at para. W1.4; FIDIC at para. 20.6; and JBCC at para. 30.7.

[5] See Radon Projects v N V Properties & another (528/12) [2013] ZASCA 83 (31 May 2013) at para. 5 where the SCA referred to adjudication as a “quick and dirty” process to ensure cash flow.

[6] Freeman NO and Another v Eskom Holdings Limited (43346/09) [2010] ZAGPJHC 29 (23 April 2010) at paras. 16 & 17; see also Ekurhuleni West College v Segal and Another (1287/2018) [2020] ZASCA 32 (2 April 2020) at para. 21.

[7] See Framatome v Eskom Holdings SOC Ltd (357/2021) [2021] ZASCA 132 (1 October 2021) at paras. 20 & 29 citing Carillion Construction Limited v Devonport Royal Dockyard Ltd [2005] EWHC 778 (TCC) para 63. While beyond the scope of this article, there are a number of cases that have upheld adjudication determinations under various circumstances in South Africa.  For those wanting to point to adjudication law in the UK as curtailing South African adjudication law, however, it is worth noting that under South African law, adjudication is purely contractual and subject to contractual interpretation rules.  The UK, on the other hand, has a statute with wording that may trump certain contractual interpretations, which would not necessarily apply in South Africa.

[8] Framatome, supra, at para. 30.

[9] Ibid.; see also a previous article I penned regarding an adjudicator’s jurisdiction in serial adjudications at http://www.glenro.co.za/Articles/Serial-Adjudication-and-the-Role-of-the-Adjudicator-in-Assessing-Previously-Determined-Issues/#wbb1

[10] GCC at para. 10.6.1.1; NEC3 at para. W1.3(10); FIDIC at para. 20.4; JBCC at para. 30.6.3.

[11] Freeman, supra, at para. 16; see also Framatome at para. 30.

[12] See https://www.gov.uk/courts-tribunals/technology-and-construction-court last visited on 30 November 2021

[13] Refer to fn 4.

[14] See, for example, JBCC at para. 30.7.1

[15] This is generally covered by the agreement which grants the power to an arbitrator to “open up, review and revise any ruling, decision, order…” including that of the adjudicator.  See GCC at para. 10.10.3; NEC3 at para. W1.4(4); FIDIC at para. 20.6; and JBCC at para. 30.7.6.

[16] Vidavsky v Body Corporate of Sunhill Villas [2005] 4 All SA 201 (SCA) (31 May 2005) at para. 15.

[17] Telcordia Technologies Inc v Telkom SA [2006] 139 SCA (RSA) at para. 73 citing Goldfields Investment Ltd v City Council of Johannesburg 1938 TPD 551; see also Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another [2009] ZACC 6; 2009 (4) SA 529 (CC) para. 66.

[18] Arbitration Act No. 42 of 1965 available at https://www.gov.za/sites/default/files/gcis_document/201505/act-42-1965.pdf

[19] See Association of Arbitrators Rules available at https://www.arbitrators.co.za/home/dispute-nominations/rules-for-the-conduct-of-arbitrators/; see also Arbitration Foundation of South Africa Rules available at https://arbitration.co.za/domestic-arbitration/commercial-rules/

[20] See Leadtrain Assessments (Pty) Ltd v Leadtrain (Pty) Ltd (427/12) [2013] ZASCA 33 (28 March 2013) for a recent summary on the determination of costs in an arbitration.

[21] Palabora Copper (Pty) Ltd v Motlokwa Transport & Construction (Pty) Ltd (298/2017) [2018] ZASCA 23 (22 March 2018) at para. 8.

[22] GCC at para. 7.1 of the “Adjudication Board Rules”; NEC3 at paras. W1.3(3) and (8); FIDIC at para. 20.4; JBCC at para. 30.6.5.  Note, the GCC provides for establishing an adjudication board.  The rules that then apply to the board are slightly different.  The board should be nominated at the start of the contract, but this is rarely done and the GCC then defaults to an ad hoc procedure, similar to the other contracts.

[23] Courts will also enforce agreed timelines in most instances.  However, these are still subject to interpretation and depending on the issue, will affect or limit each parties’ rights.  In this regard, refer to Sasol Chemical Industries Ltd v Odell and Another (401/2014) [2014] ZAFSHC 11 (20 February 2014) at para. 20; see also Freeman, supra; RMV Engineering Project (Pty) Ltd v. Pro-Serve Consulting (Pty) Ltd case no. 40842/20 (19 November 2021) unreported judgement Gauteng Division - Pretoria.

[24] See Odell, supra, fn 21.

[25] Ibid. at para. 20; see also Ekurhuleni West College v Segal and Another (1287/2018) [2020] ZASCA 32 (2 April 2020)

[26] Bhoola v. Bhoola 1945 NPD 109 at 113-14; Bester v. Easigas (Pty) Ltd 1993 (1) SA 30C (33F).

[27] See PROCSA at para. 18.2; JBCC at para. 30.8

[28] JBCC at para. 30.8.