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Introduction
The Bulletin last week entitled “When is an Adjudicator’s Decision Unenforceable?” dealt with the decision of the Gauteng High Court in the Framatome case1 handed down on 30 September 2020.
That decision was taken on appeal to the Supreme Court of Appeal in Bloemfontein (SCA) which has just handed down judgment.
This Bulletin is a follow on from last week’s Bulletin and provides the latest word on the subject.
For ease of assimilation and for the benefit of those who have not yet read last week’s Bulletin, the content of that Bulletin is reproduced and the SCA decision dealt with at the end.
Background
Adjudication is a dispute resolution process created by contract in many modern standard form construction contracts.
A common feature of adjudication clauses is that an adjudicator’s decision is binding on the parties, albeit not final, unless neither party gives a notice of dissatisfaction in relation to the decision within a stipulated time limit.
Adjudication was born out of the necessity in a construction contract setting to have a means of resolving disputes speedily without the expeditious execution of the contract being unduly retarded.
Where a losing party fails or refuses to comply with an adjudicator’s decision, the successful party’s remedy is to apply to court for a court order directing compliance on the part of the loser.
There is a long line of cases in our jurisprudence in which adjudicators’ decisions have been enforced despite all manner of ingenious arguments raised by the losing party as to why the adjudicator’s decision should not be enforced.
In the nature of adjudication, it is a means of dispensing fairly rough-and-ready justice within what can be considered tight timeframes compared to the timeframes in normal dispute resolution processes.
It is therefore accepted that, whether or not an adjudicator gets it wrong with reference to the facts or the applicable law, his decision is binding and enforceable more so as it is open to the loser to take the dispute forward for final determination usually by arbitration or by the decision of a court.
This also means that an adjudicator’s decision is not amenable to being reviewed and set aside by a court. There has been more than one recent unsuccessful attempt by a losing party to have a court set an adjudicator’s decision aside on review.
ALASTAIR HAY
COX YEATS
Direct Tel: 031 - 536 8508
