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Construction adjudication is often treated as interim, with arbitration or litigation waiting as the final forum. In a judgement delivered by the Eastern Cape Division, Makhanda on 30 April 2026, Krüger AJ warned that this assumption is only as good as the contract: adjudication is as provisional, revisable, or arbitral as the agreement provides. Where public-sector substitutions alter a standard form, the court will enforce the text signed rather than reconstruct dispute-resolution machinery that has been deleted.
Facts of the Case
The dispute arose from a public-sector construction contract for work at the Uitenhage Museum. NLG Construction and Plant Hire CC and the Eastern Cape Department of Public Works concluded the Principal Building Agreement on 29 April 2021, after a tender process, at a contract value of R16,591,731.85. The parties used the JBCC 2000 Principal Building Agreement, edition 4.1 of 2005, which substitutes certain clauses where a party is an organ of state.
Those substitutions were decisive. Standard clause 40 would ordinarily have provided for adjudication under the JBCC Rules, a binding adjudicator’s decision, a notice of dissatisfaction, and final arbitration. Clause 41, however, replaced clause 40.2.1 and clauses 40.3 to 40.6 with “No clause”, while allowing litigation where elected in the schedule.
The Schedule appeared to point both ways, but ultimately not for the Department. Clause 42.7.1 recorded adjudication as the default method, and “adjudication” was handwritten into the relevant block. The subclauses dealing with adjudicator appointment, arbitration, and mediation were cancelled and marked “not applicable”.
After cancellation, NLG referred a dispute to adjudication on 3 July 2024. The adjudicator dismissed the Department’s in limine points and, on 12 December 2024, determined that the Department must pay R7,945,975.54. That determination turned the matter into an enforcement fight: NLG sought to make the award an order of court and recover the Department’s half-share of the adjudicator’s fee, while the Department opposed and conditionally counterapplied to review and set it aside.
Legal Framework
The court approached the dispute through orthodox principles of contractual interpretation. In University of Johannesburg v Auckland Park Theological Seminary 2021 (6) SA 1 (CC), the Constitutional Court confirmed that interpretation is unitary and holistic, requiring text, context, and purpose to be considered from the outset. The parol evidence rule remains part of South African law: extrinsic evidence may assist with context and purpose, but may not vary, contradict, or add to the written agreement.
The Department’s case also required the court to distinguish implied and tacit terms. Under South African Forestry Company Ltd v York Timbers Ltd 2005 (3) SA 323 (SCA), an implied term is imported by law and is not added simply because it seems fair or reasonable. Trade usage requires strict proof, as illustrated by Golden Cape Fruits (Pty) Ltd v Fotoplate (Pty) Ltd 1973 (2) SA 642 (C). A tacit term is inferred from the parties’ common intention, as explained in Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A).
But neither route helped the Department. Kelvinator Group Services of SA (Pty) Ltd v McCulloch 1999 (4) SA 840 (W) and SA Mutual Aid Society v Cape Town Chamber of Commerce 1962 (1) SA 598 (A) confirm that a tacit term cannot conflict with express provisions. Once the contract was found to exclude the JBCC Rules and second-tier arbitration, those terms could not be reintroduced by implication or tacit inference.
On review, the court applied the distinction between merits and process. Citing Ekurhuleni West College v Segal (1287/2018) [2020] ZASCA 32, it held that review asks whether the procedure was fair and correct, not whether the adjudicator was right on the merits. Public-policy resistance was assessed under Ethekwini Municipality v Cooperativa Muratori & Cementisti - CMC di Ravenna Societa Cooperativa 2023 (6) SA 384 (SCA), which requires facts, not bare assertions of unfairness, unreasonableness, or inequity.
The Court’s Analysis
The Department first argued that the parties had reincorporated the standard-form adjudication and arbitration clauses by cross-reference. The court disagreed: the clause 40.2.1 reference was printed, italicised, in square brackets, and identified by the Schedule as a user aid rather than a substantive term.
The Department next relied on the usual understanding of adjudication as speedy and interim. The court refused to turn that understanding into an implied term: it would be “a bridge too far” to say every adjudication contract implies arbitration review unless expressly excluded, and there was no proof of a universal two-tier trade usage.
The tacit-term argument failed because NLG’s later references to clause 40.2.1 and the JBCC Rules could not override the express agreement. The court accepted that such material might be weighed, but held that expressly excluded terms could not be inferred back into the contract. The agreement therefore did not provide for arbitral revision of the adjudicator’s decision.
The first review ground failed because clause 40.2.1 had not been reincorporated, the parties later agreed to use the JBCC Rules at the first pre-adjudication hearing, and Rule 1.2 allowed agreed deviations. The court also held, relying on Freeman NO v Eskom Holdings Limited (43346/09) [2010] ZAGPJHC 137, that delay invalidates an adjudication determination only where the parties have explicitly agreed to that consequence.
The second ground was framed as procedural unfairness but, in substance, attacked the adjudicator’s conclusion. The court treated the complaint about ignored payment and delay documents as a merits attack rather than a true review ground.
The Department also argued that cancellation, the absence of a final account, and public funds justified non-enforcement. The court rejected this: the contract did not postpone adjudication until the final account, clause 40.10 preserved the dispute-resolution clause after cancellation, and public entities are not exempt from contractual liability because public funds are involved.
The third ground also failed. The complaint about the profit-and-fees rate in the Bill of Quantities attacked the merits and disclosed no procedural irregularity.
Conclusion
The judgement is a timely reminder that standard-form construction contracts cannot be read by habit. Public-sector substitutions, handwritten entries, deletions, and “not applicable” markings may alter the usual dispute-resolution architecture, and courts will enforce the contract actually concluded. Adjudication therefore does not automatically carry a second bite at arbitration; if parties want arbitral revision, they must preserve or insert it clearly. A printed cross-reference left as a user aid will not resurrect expressly deleted clauses.
The case also confirms that review is not an appeal on the merits and that public-policy objections must be factually grounded. Harshness, commercial inconvenience, or pressure on public funds will not be enough.
The court ultimately made the adjudicator’s 12 December 2024 determination an order of court, ordered the Department to pay R7,945,975.54 and R71,045.28 for its half-share of the adjudicator’s fees, dismissed the counterapplication, and awarded NLG scale C costs, including two counsel, one senior. For practitioners, the warning is straightforward: the route out of adjudication must be found in the contract, not in assumptions about how adjudication usually works.
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