Uncle Oswald’s Q&A Forum – January 2026

UNCLE OSWALD’S Q&A FORUM – JANUARY 2026

IDENTIFICATION OF THE SELECTED NOMINATING BODY
– JBCC SERIES 2000 CONSTRUCTION CONTRACT

EDITOR’S NOTE: I appreciate our readers’ patience with our beloved Uncle Oswald’s recent absence from the pages of Arbitrarily Speaking. He needed a break. According to Uncle Oswald, the years have been kind to him. The weekends did the damage.

But he is back! In this edition, Uncle Oswald advises his old friend Fearless Frikkie on an interesting interpretational issue concerning the identification of the selected nominating body in terms of a JBCC Series 2000 construction contract.

Dear Uncle Oswald,

It’s me again, Fearless Frikkie. I am starting off 2026 with a new construction dispute and I need your advice, please.

The situation is this. I am the employer in a R250 million multi-storey residential building project on the East Rand. The contractor turned out to be useless. On 10 October last year, the principal agent issued a recovery statement which accompanied the final payment certificate. In terms thereof, an amount of R23 million was due, owing and payable to me by the contractor within 21 calendar days from the date on which the principal agent issued the final payment certificate. The amount certified relates inter alia to the contractor’s defective work concerning tiling and rising damp throughout the project. The defective work was notified in accordance with the contract. The contractor failed to rectify the defects. I had to incur expense and suffered loss by employing another contractor to do remedial work. The 21 calendar days have expired. The contractor has not paid me. According to him, he has a defence which he will disclose “at his convenience in the appropriate forum”. I phoned him in January 2026, but he flatly refused to discuss the matter with me, referred to my mother in very unsavoury terms and essentially told me to do as I deem fit.

Long story short, I’m down R23 million. I have no option but to institute dispute resolution proceedings against the contractor in accordance with our construction contract.

The contract in question is the JBCC Series 2000 Edition 5.0 (July 2007) Principal Building Agreement (the PBA). Clause 40 of the PBA deals with dispute resolution. Clause 40.2 provides me with a choice between adjudication and arbitration as dispute resolution procedures. I have decided to refer the matter to adjudication in terms of clause 40.2.1.

This is where my dilemma arises.

I cannot determine from the PBA who the dispute resolution body (also referred to in the trade as the appointing / nominating body) is for purposes of adjudication. The only clause in the PBA that refers to such a body is clause 41.3 but, on my reading, it applies only to arbitration, not to adjudication. Clause 41.3 reads as follows:

‘”41.3      The dispute resolution body [40.2.2] selected by the parties is: The Association of Arbitrators (Southern Africa) NPC.”

 

Clause 40.2.2 applies only to arbitration. Clause 40.2.1 is the one that applies to adjudication, but it is not mentioned in clause 41.3. Therefore, on my reading, the PBA is clear on the question of which body to approach for the appointment of an arbitrator but is silent on the question of which body to approach for the appointment of an adjudicator.

My question to you is this: Which nominating / appointing / dispute resolution body has jurisdiction to appoint an adjudicator (as opposed to an arbitrator) in terms of this PBA?

Best regards,

Fearless Frikkie

 

__________________________________________________________________________________

 

Dear Frikkie,

I am delighted to hear from you again.  I’ve missed our regular Saturday night discussions at the lapa with skaaptjoppies, brannas and Coke, but I now understand.  Your new role as employer is probably keeping you quite busy.

My short answer to your question is that, in terms of your particular PBA, the Association of Arbitrators (Southern Africa) NPC (the Association) is the nominating / appointing / dispute resolution body (these terms are used interchangeably in the construction industry, and in the PBA) selected by the parties for purposes of all three dispute resolution processes (mediation, adjudication, and arbitration) envisaged by the dispute resolution clause in the PBA, which is clause 40.

Let me explain my interpretational thought processes:

  1. They say that a camel is a horse designed by a committee. I don’t know who they are, but they would not be too far off the mark by applying the same comparison to standard-form construction contracts. Most of the widely used standard-form construction contracts including the JBCC have been developed over many years and amended on numerous occasions. One of the risks of developing and amending contracts (as opposed to re-drafting them from scratch) is that, over time, certain provisions may become somewhat vague and/or ambiguous and may require more focussed interpretational effort, skill and experience. Clause 40 of your PBA is a case in point as far as the identification of the selected nominating / appointing / dispute resolution body for purposes of adjudication is concerned.
  2. Before we embark on our interpretational exercise, we need to remind ourselves of the rules of the game, in other words the legal principles applicable to the interpretation of contracts. There are more, but for present purposes the important ones are the following:
  3. If your election was to proceed by way of arbitration, there would have been no difficulty to identify the nominating / appointing / dispute resolution body selected by the parties to nominate / appoint an arbitrator. Clause 41.3 expressly determines that, for purposes of clause 40.2.2 (arbitration), the selected body is the Association. Clause 40.2.2 expressly, and only, deals with the position where arbitration is the chosen dispute resolution mechanism;
        • The words used in a written contract are to be construed according to their ordinary use and application;[1]
        • The words used in a contract must not be interpreted in isolation but should be interpreted in the light of the contract read as a whole and in the light of its nature and purpose;[2]
        • The objective purpose of the exercise should always remain to give commercial efficacy to the contract. In other words, where a contract is capable of more than one interpretation, the interpretation that favours the survival of the contract as a whole should prevail;[3]
        • The words used in a contract should guide the enquiry into the intention of the parties. In this context, the intention rather than the ordinary meaning of a word.[4]
  1. As you were entitled to do in terms of clause 40.2, you however selected adjudication in terms of clause 40.2.1 as your chosen dispute resolution mechanism. Your perceived difficulty is that clause 41.3 is the only clause in the contract that identifies a selected nominating / appointing / dispute resolution body but it makes no mention of clause 40.2.1 which governs adjudication as the chosen dispute resolution mechanism. In addition, clause 40.2.1 itself is silent in this regard;
  2. However, I think that your perceived difficulty is more apparent than real.

I say this for the following reasons:

  • As pointed out above, any contract has to be interpreted as a whole. Because clauses 40.2.1 and 40.3.1 both expressly refer to the JBCC Rules for Adjudication (the Rules), the Rules are incorporated by reference into the PBA. In other words, the PBA and the Rules both form part of the same contract and should be interpreted as a whole;
  • The introductory sentences of the Rules determine that the Rules form part of the PBA;
  • Clause 2.1 of the Rules determines that an unresolved dispute shall be referred to the “nominating body (CD)”. The “(CD)” is the contract data;
  • Clauses 40 and 41 of the PBA and, by incorporation, the Rules, form part of the contract data;
  • The relevant essence of all of this is that the nominating / appointing / dispute resolution body for purposes of adjudication in terms of clause 40.2.1 of the PBA and clauses 2.1 and 2.2 of the Rules is the same nominating / appointing / dispute resolution body selected in the contract data in terms of clauses 40.2.2 and 41.3 for purposes of arbitration;
  • In addition, clause 2.2 of the Rules expressly refers to the “Dispute Resolution clause” which is clause 40 of the PBA and it determines that, in absence of consensus between the parties, either party may request the “nominating body” to appoint the adjudicator;
  • Interpreted in context, all of the above indicate that there is, for all purposes under clause 40 of the PBA, only one nominating / appointing / dispute resolution body. That is the one selected by the parties in clause 41.3 of the contract data as contained in the PBA. It is the Association;
  • Clauses 40.2.1 and 40.3.1 of the PBA and clauses 2.1 and 2.2 of the Rules contain no express reference to the identity of the nominating / appointing / dispute resolution body for purposes of adjudication;
  • Left like this, on a literal interpretation, the result would be (as you have interpreted it) that in the event of adjudication (and mediation), the PBA does not identify a nominating / appointing / dispute resolution body to nominate / appoint an adjudicator (or mediator);
  • Clearly, such an interpretation cannot stand. It would lead to the failure of clause 40 of the PBA as far as adjudication and mediation as dispute resolution mechanisms are concerned;
  • As pointed out above, the contract must be read as a whole and in the light of its nature and purpose. The nature and purpose of the PBA and the Rules, read as a whole, is for construction disputes to be resolved effectively and expeditiously. This includes that in the absence of consensus between the parties, a selected nominating / appointing / dispute resolution body shall nominate / appoint either a mediator, an adjudicator, or an arbitrator, depending on which dispute resolution mechanism is chosen by the referring party;
  • As pointed out above, the interpretation that provides commercial efficacy to the contract, and favours its survival as a whole, must prevail;
  • Such an interpretation is, in short, that the phrase “[40.2.2]” in clause 41.3 must be interpreted / constructed to read “[40.2.1, 40.2.2 and 40.6]”. In other words that the parties’ selection of a nominating / appointing / dispute resolution body applies to all three of the dispute resolution mechanisms (mediation, adjudication and arbitration) envisaged by clause 40 of the PBA.

Therefore, dear Frikkie, my advice to you is to apply to the Association for the appointment of an adjudicator.

However, there is always scope for different opinions. Let us invite any of our readers who might have a contrary view, or a better argument to support my view, to make their submissions to the editor.

Best regards,

Uncle Oswald

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[1]

See e.g. Association of Amusement and Novelty Machine Operators v Minister of Justice 1980 (2) SA 636 (A) at 662.

[2]

See e.g. Cliffside Flats (Pty) Ltd v Bantry Rocks (Pty) Ltd 1944 AD 106 at 111, Swart v Cape Fabrix (Pty) Ltd 1979 (1) SA 195 (A) at 202, and Young v Liberty Life Association 1991 (2) SA 246 (W) at 249.

[3]

See e.g. Nach Investments (Pty) Ltd v Yaldai Investments (Pty) Ltd 1987 (2) SA 820 (A) at 832.

[4]

A Kellaway Principles of Legal Interpretation Butterworths 1995 at 447 para 27.

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