Timber iQ December 2018 - January 2019 // Issue: 41 | Page 13

ASSOCIATIONS
speedy solution to mostly technical issues that led to
payment disputes. Adjudication is widely used
throughout the English-speaking world and most
countries have regulated the process by publishing
‘adjudication rules’. The adjudicator should be qualified
to apply the principles of natural justice and have
technical skills to analyse a problem and make an
appropriate determination on such matters and its
payment issues.
It is important to note that no certified payment can
be withheld: payment must be made in terms of the
contract for the undisputed amount while the disputed
issues are referred to an adjudicator to resolve before
the next payment cycle. The adjudicator’s determination
is immediately binding – but may be overturned in
subsequent arbitration.
This last level of dispute the resolution clauses in
Standard Form Contracts is arbitration which is strictly
regulated and largely follows court procedures. However,
this a drawn-out process as it must deal with dispute
issues in depth. Arbitrators must be qualified and operate
within a set of rules. The arbitrator’s decision is final and
binding and can only be overturned by a court order.
Some Standard Form Contracts provide for the
appointment of a dispute avoidance board consisting of
one or three people (with technical, financial and legal
skills) appointed on a retainer to keep an eye on all
phases of a project to timeously identify possible
problems that could become disputes and find
alternative solutions before swords are drawn.
"Looking at the situation, I find
that in the end, time, productivity
and harmony are not part of most
avenues towards agreement."
Outside the Standard Form Contracts process, the parties
in conflict can turn to the courts and resort, one would
think reluctantly, to litigation. This is an extremely long
and very costly process involving several levels of
legal expertise.
In fact, the South African Department of Justice has
issued a directive that building-related disputes must be
resolved using the dispute resolution procedures
provided in Standard Form Contracts and only be
referred to the courts by exception. In other words, don’t
waste the courts’ time – and your money – unless you
absolutely have to.
To sum up, depending on the nature of a project and
its location, any or all the techniques in Standard Form
Contracts listed above may be employed to resolve
disputes. Looking at the situation, I find that in the end,
time, productivity and harmony are not part of most
avenues towards agreement.
But it would be so much better for all concerned if
more of the parties really want to avoid conflict and first
try the coffee compromise chat first.
// DECEMBER 2018 / JANUARY 2019 11