Judgments / Orders

–   Payment certificates represent independent debt.  Performance must be referred to arbitration, not used to avoid interim payment.

–   Fraud or misrepresentation in performance or adjudication proceedings does not void the arbitration clause.

–  ‘Unconscionability’: To What Extent Does It, or Can It, Constitute a Defence in South African Law to a Party’s Ability to Make a Call for Payment Under an On-demand Guarantee?

–   The Tension between the Application of Good Faith and Pacta Sunt Servanda

–   International Arbitration Waiver of the Right to Review an Arbitration Award

–   Courts are generally hesitant to interfere in the enforcement of arbitration awards
in the absence of a review application in accordance with s33 of the Arbitration Act.

–   An arbitration award does not create a new debt.

–   A claim to make the arbitration award an order of court does not constitute a debt and
therefore is not subject to the 3 year prescriptive period in terms of the Prescription Act.

–   An adjudicator’s decision creates an immediate, binding contractual obligation.  Parties must comply with the award, even if they intend to refer the underlying dispute to a final arbitration or court hearing.

–   A delay in issuing an adjudicator’s decision does not invalidate it.  A determination published slightly past the agreed timeframe remains legally enforceable.

–   A dissatisfied party cannot withhold payment or refuse to honour an adjudicator’s determination simply by registering dissatisfaction or threatening further litigation.

–   An adjudicator’s decision is binding and must be complied with as a matter of contractual obligation, even if a party intends to refer the dispute to a tribunal.

–   An adjudicator’s decision remains valid, binding and enforceable despite being published after the expiry of prescribed 4-week period (NEC3).

–   An adjudicator’s mandate does not simply cease, nor does and adjudicator’s award become invalid, purely because it was delivered late, unless the contract explicitly voids late decisions.

Hodgkinson v K2011104122 (Pty) Ltd and Another

A public authority does not simply ‘shed’ its constitutional and administrative justice duties (e.g. procedural fairness) merely by entering into a contract.  It cannot conduct its affairs as a private enterprise, completely free from public duties.

Fraud is a conduct that vitiates any transaction known to the law.   Enforcing an arbitration clause embedded in a contract induced by fraud is offensive to public policy and justice, as it would force an aggrieve party to submit to a corrupt arrangement.

–   Under NEC3 Option W1.3, an adjudicator must notify their decision within strict timeframes (typically 4 weeks from receiving the last information).  The mandate is not open-ended and expires at the end of the stipulated period unless the parties mutually agree to an extension.

–   If an adjudicator delivers a decision after the mandate has lapsed, that determination is a nullity and cannot be enforced.  Conversely, as established in South African construction law, decisions delivered within an active mandate are strictly enforceable on an interim basis, even if the adjudicator erred factually or legally.

–   If the adjudicator fails to deliver a valid decision timeously, or if a party is dissatisfied with a valid decision, NEC3 dictates the next steps.  The aggrieved party must issue a Notice of Dissatisfaction and escalate the matter to final resolution (eg. arbitration) within specific timelines.  Failing to do so makes the adjudicator’s decision final and binding, making it res judicata (an already adjudicated matter).

–   If a contract is void for lack of consensus due to material misrepresentation, the arbitration clause becomes void in its entirety.

–   The arbitration clause cannot be severed to stand on its own in such a scenario and an arbitrator cannot derive jurisdiction for a tainted agreement.  The court will maintain its jurisdiction to determine the validity of such a contract.

–   Parties seeking to resolve disputes by way of arbitration should be mindful that an arbitrator’s role is to strike a balance between competing issues between parties based on the facts and evidence before them.

–   Parties should act with the utmost good faith to ensure that disputes are resolved without delay.

–   Parties dissatisfied with the outcome of proceedings should resist the temptation of challenging the arbitration award on the grounds of alleged gross irregularities, unless there are grounds to do so, especially where parties have not made provision for an appeal.

 –   Exercising Discretion under Section 20 of the Arbitration Act: A Summary of the Relevant Considerations and Guiding Principles 

 –   Case in Point – October 2025

 –   Timing – lex commissoria cancellation