Pro-Khaya Construction CC v City of Cape Town and Johan G Wasserman SC
Case No. 9103/2023
Date: 15 August 2025
This case is reportable due to its significance in the realm of construction law and the enforcement of adjudicator determinations under the Joint Building Contracts Committee (JBCC) rules. The judgment clarifies the enforceability of adjudicator decisions and the limited grounds for judicial review, emphasizing the binding nature of such determinations unless there are serious procedural irregularities or lack of jurisdiction.
The High Court of South Africa addressed an application by Pro-Khaya Construction CC for the enforcement of an adjudicator's determination against the City of Cape Town. The adjudicator had ruled in favor of Pro-Khaya, ordering the City to pay a substantial amount due under a construction contract. The City contested the determination, claiming it was invalid due to alleged jurisdictional issues and procedural irregularities. The court ultimately upheld the adjudicator's decision, emphasizing the binding nature of such determinations under the JBCC rules.
The key legal issues addressed in this case include the validity and enforceability of the adjudicator's determination, the jurisdiction of the adjudicator, and the grounds for judicial review of the determination.
The court held that the adjudicator's determination was valid and enforceable, rejecting the City's claims of lack of jurisdiction and procedural irregularities. The court ordered the City to comply with the adjudicator's decision and dismissed the City's counter-application for review.
Pro-Khaya Construction CC was engaged by the City of Cape Town to construct a new electrical depot. Following delays and disputes regarding the contract, Pro-Khaya terminated the agreement and sought adjudication under the JBCC rules. The adjudicator ruled in favor of Pro-Khaya, ordering the City to pay a final amount. The City failed to comply with this ruling and instead sought to challenge the adjudicator's determination, claiming it was invalid due to jurisdictional issues.
The court had to determine whether the adjudicator's decision was valid and enforceable, specifically addressing whether the adjudicator had jurisdiction over the dispute and whether the determination was subject to judicial review based on the City's claims.
The court analyzed the procedural history of the dispute, emphasizing the importance of the JBCC rules in governing the adjudication process. It found that the City had not properly contested the adjudicator's jurisdiction during the proceedings and had failed to submit a notice of dissatisfaction within the required timeframe. The court underscored that the adjudicator's role is that of an expert, and his determinations are binding unless there are significant procedural flaws.
The court ordered the City of Cape Town to comply with the adjudicator's determination dated 10 March 2023, which included the payment of R8,095,536.22 plus VAT to Pro-Khaya. Additionally, the court dismissed the City's counter-application to set aside the adjudicator's determination and awarded costs to Pro-Khaya at Scale C of the High Court.
The judgment established that adjudicator determinations under the JBCC rules are binding and enforceable unless there are serious procedural irregularities or a clear lack of jurisdiction. The court emphasized the limited grounds for judicial review of such determinations, reinforcing the principle that parties are bound by the expert's decision unless there is evidence of fraud, collusion, or manifest injustice.