In several construction-heavy jurisdictions, most notably the United Kingdom, adjudication is no longer merely a contractual convenience. It is a statutory right. Parties to construction contracts are entitled by legislation to have disputes resolved swiftly by adjudication as a first step, precisely to avoid projects grinding to a halt under the weight of protracted litigation.
South Africa very nearly followed the same path. Approximately a decade ago, the Minister of Public Works proposed amendments to the Regulations under the Construction Industry Development Board Act 38 of 2000. The draft regulations would have introduced compulsory prompt payment and statutory adjudication across the construction sector, applying to both public and private projects and regardless of whether contracts were written or oral. Although the proposed amendments were published for public comment, they were never enacted. The result is that South Africa currently has no system of mandatory statutory adjudication.
That absence has not diminished the practical importance of adjudication. On the contrary, adjudication has entrenched itself as a central dispute resolution mechanism in construction contracts throughout the country.
Contractual adjudication is neither novel nor experimental in South Africa. It is a familiar and widely used process designed to preserve cash flow and keep projects moving while disputes are dealt with on an interim basis. The underlying rationale was clearly articulated by the Supreme Court of Appeal in Framatome v Eskom Holdings SOC Ltd, where the Court explained that adjudication exists to provide a speedy provisional resolution of disputes, with decisions enforceable pending final determination through arbitration.
This approach has become deeply embedded in the industry. Standard-form contracts commonly used in South Africa, including JBCC, NEC and FIDIC, almost invariably contain adjudication clauses. The process is often described, somewhat inelegantly, as “quick and dirty”, but the phrase captures its essence. Adjudication is not about perfection or finality. It is about pragmatism. The principle is simple and firmly endorsed by the courts: pay now, argue later.
Adjudication is structured to be fast by design. Its purpose is not to conduct a forensic examination of every factual and legal issue, but to reach an interim outcome that allows work to continue and money to flow. Most construction contracts prescribe short timelines for the appointment of an adjudicator, the referral of the dispute, the exchange of submissions and the delivery of the decision. While these time periods can usually be extended by agreement, the expectation is that disputes will be resolved in months rather than years.
The process typically begins once a dispute has crystallised. The dissatisfied party issues a notice of adjudication, after which an adjudicator is appointed without delay. The referring party submits its case, setting out the claim and the relief sought. The responding party answers with its defence and any counterclaim. Further written exchanges may occur if required. In technically complex matters, particularly those involving expert evidence, the adjudicator may convene a limited hearing to clarify specific issues or to hear oral submissions.
Although adjudication prioritises speed, it is not immune to delay. Complex disputes, high-value claims and tactical behaviour by parties can all extend timelines. There is a constant tension between efficiency and fairness. An overly rushed process risks superficial reasoning, while excessive delay defeats adjudication’s core purpose of keeping projects alive rather than stalled in dispute.
Adjudicators’ decisions are binding on an interim basis and must be complied with until set aside or revised in arbitration. South African courts have repeatedly emphasised that this obligation is not optional. Enforcement is usually pursued through motion proceedings and will generally succeed unless the adjudicator lacked jurisdiction, acted outside the scope of the contract, or conducted the process in a manner that was procedurally unfair.
Crucially, enforcement proceedings are not aimed at converting the adjudicator’s decision into a court judgment. Instead, the court compels the defaulting party to honour its contractual commitment to give effect to the adjudication outcome. Attempts to withhold payment on the basis that arbitration is pending have been firmly rejected. In Tension Overhead Electrification v Ircon International Limited, the court held that where an adjudicator’s decision involves payment, giving effect to that decision means exactly that: payment must be made, notwithstanding ongoing arbitration proceedings.
Challenges to adjudication decisions are tightly circumscribed. Compliance is required save in exceptional circumstances such as fraud, gross procedural irregularity or a clear excess of jurisdiction. Allegations that the adjudicator misunderstood the facts or reached the wrong conclusion on the merits will not suffice. Courts have consistently shown little patience for attempts to undermine adjudication through merit-based challenges disguised as jurisdictional complaints.
As South Africa embarks on increasingly complex infrastructure and construction projects, the role of adjudication is likely to grow rather than diminish. In the absence of statutory adjudication, contractual adjudication remains the industry’s most effective tool for managing risk, maintaining cash flow and preventing disputes from paralysing projects. It has become an indispensable feature of modern construction practice, not because it is perfect, but because it works.
