IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case No. 9103/2023

In the matter between:

PRO-KHAYA CONSTRUCTION CC Applicant

and

CITY OF CAPE TOWN First Respondent

JOHAN G WASSERMAN SC Second Respondent

This judgment was handed down electronically by circulation to the parties’ legal
representatives by email publication and release to SAFLII. The date and time for
hand-down is deemed to be 14h00 on 15 August 2025.


JUDGMENT


MAPOMA, AJ

[1] This is an opposed application for enforcement of the adjudicator’s determination
in a construction dispute. The applicant, Pro-Khaya Construction cc (“Pro-Khaya”), a
OFFICE OF TH E C HI EF JUSTICE
REPUBLI C OF SOUTH AF RICA

construction company and former service provider to the first respondent, the City of
Cape Town (“the City”), seeks an order compelling t he City to comply with the
adjudicator’s determination dated 10 March 2023 (“the determination”).

[2] The determination was issued by the second respondent , Adv Johan G
Wasserman SC, (“the adjudicator”) in his official capacity as an adjudicator in the
adjudication dispute resolution process of a dispute that was referred by Pro Khaya
for resolution in terms of the standard Joint Building Contracts Committee (JBCC)
Principal Building Agreement, Edition 6.1 of March 2014 (“the JBCC Contract”) ,
which were published in January 202 0, and the procedure set out in the JBCC
Adjudication Rules (“the JBCC rules”). The construction contract between the parties
provides for the JBCC rules to be used as the dispute resolution mechanism in the
event of there being a dispute between the parties.

[3] In the determination, the adjudicator ruled that the City is required to make
payment to Pro Khaya, of the final payment certificate in the amount of
R8 095 536.22 excluding VAT. The City failed to honour the ruling of the adjudicator.
Pro Khaya has approached the Court seeking a declaration order and consequential
reliefs which enforce s the decision of the adjudicator . Although determination is at
the centre of these proceedings, no substa ntive relief is sought against adjudicator
personally, hence he took no part in the proceedings.

[4] The City is resisting Pro Khaya’s enforcement application on the basis that the
determination is invalid and unenforceable because, according to the City, the
adjudicator lacked jurisdiction to determine the dispute . In so doing, the City
launched a counter-application wherein it seeks the Court to review and set aside of
the adjudicator’s determination on various grounds.

[5] Pro Khaya is opposing the City’s review application, contending that the decision

[5] Pro Khaya is opposing the City’s review application, contending that the decision
of the adjudicator is not open for judicial review. This contention is advanced on
various bases , that include that the dispute had been determined in terms of the
contractual agreement which encapsulates the JBCC rules as a dispute resolution
mechanism; that in terms of the JBCC rules the determination is final, binding and

enforceable; and that the review procedure is not applicable on the adjudicat or’s
determination and, as such, the court has no review jurisdiction on this matter.

Background facts

[6] During 2018, p ursuant to the City’s public procurement process for appointment
of a service provider to undertake construction of a new electrical depot in Hout Bay ,
Western Cape, Pro-Khaya was a successful bidder and was duly appointed by the
City as a preferred service provider to implement the project. The depot comprised of
a double -storey administration building with lift system , as well as a single-story
building, a guardhouse, parking carports and a boundary wall. The total construction
value was R34 658 874.16 (Including VAT), which was re-measurable and subject to
actual work performed and adjustments in terms of the contract.

[7] On 12 November 2018, t he construction contract for the value of
R34 658 874.16 (Including VAT) was concluded between the Pro Khaya and the
City. The contract comprised of t he standard terms of the Joint Building Contracts
Committee (JBCC) Principal Building Agreement, Edition 6.1 of March 20 14 (“the
JBCC Contract”), subject to the changes specified in the Part C12 (Contract Data) of
the City’s tender document. 1 The contract also included contract data with
annexures, bill of quantities, the model preambles for trade and contract documents
which included programme and technical documents such a s drawings. The City
also appointed EBESA A rchitects (Pty) Ltd as t he principal agent in terms of the
JBCC contract (“the principal agent”).

[8] The contract commenced on 12 November 2018, to the date of its conclusion.
The duration of the contract was 15 months, which would be a 10 months’ period for
construction until practical completion , a three months ’ defects period, and two
months for builders’ annual leave. Accordingly, the contract expired on 12 February
2020 but was renewed on 24 February 2020, for a period of six months commencing

2020 but was renewed on 24 February 2020, for a period of six months commencing

1 These include the Bills of Quantities, The Model Preambles for Trade, and other Contract
Documents like programme and technical documentation such a drawings

on 1 March 2020 to 31 August 2020. As a consequence of th e contract renewal, the
contract sum was increased by R2 733 545 (excluding VAT).

[9] On 16 January 2019, the City handed over the construction site to Pro -Khaya
with the agreed timelines for project completion . Project delays leading to v arious
extensions of time and disagreements between Pro Khaya and the principal agent
occurred during the period leading up to 3 1 August 2020. Pro Khaya did not finish
the project on the completion date 31 August 2020.

[10] On 26 August 2020, the principal ag ent suspended Pro Khaya from operations
on site upon noting that inevitabl y Pro Khaya would not finish the project by the
completion date of 31 August 2020. A disagreement arose between the City and Pro
Khaya regarding, inter alia, the termination of the agreement and various extensions
of time (EOT). This culminated in the termination of the construction contract by Pro
Khaya on 14 October 2020 , citing repud iation of the contract by the City on 26
August 2020. On 16 October 2020, Pro Khaya vacated the construction s ite and did
not return.

[11] The issue of the termination of the contract mutated into a dispute that was
referred to an adjudicator in the person of Mr Jamieson. On 15 January 2021 , Mr
Jamieson handed down a determination (“the Jamieson determination”) , where he
found that the purported termination by Pro Khaya was of no force and effect . For
some reasons not relevant in this matter, the determination was only published on 18
June 2021 . On 26 June 2021 , Pro K haya, acting in terms of clause 30.6.4 of the
JBCC contract , submitted a notice of dissatisfaction with the Jamieson
determination. Thence, the dispute regarding termination of the contract remained
open and Pro Khaya did not go back to site. Pro Khaya did not proceed with neither
arbitration nor litigation after it issued a notice of dissatisfaction with Jamieson
determination of 26 June 2021.

determination of 26 June 2021.

[12] Clause 30.2 of the JBCC contract provide s that where disagreement arising
between the parties (employer or the principal agent or an agent and the contractor)
and the disagreement is not resolved within ten (10) working days of receipt of the
notice of disagreement , the disagreements will be deemed to be a dispute. Clause

30.3 provides that the dispute shall be referred to adjudication within ten (10)
working days of the expiry of the period referred to in 30.2 by means of a notice of
adjudication by the party that g ave the notice of disagreement . The dispute is
adjudicated in terms of the procedure set out in the JBCC adjudication rules.

[13] On 13 February 2022 , Pro Khaya delivered the first notice of disagreement ,
followed by the notice of adjudication on 4 March 2022 . This dispute concerned the
termination of the contract on 30 August 2020; failure of the principal agent to issue
the final account pursuant to the termination of the contract and non-compliance by
the principal agent and the City with the provisions of clauses 29.28 to 29 .32 of the
JBCC contract; proper valuation of the final account including contractors claim for
extension of time and additional costs , which remain ed uncertified by the principal
agent and unpaid by the City; and City’s failure to return the construction guarantees
to the contractors in terms of clause 29.17.5 of the JBCC contract following
termination.

[14] Later on, in particular o n 31 October 2022, Pro Khaya issued the second notice
of disagreement, followed by the notice of adjudication on 18 November 2022 . This
dispute concerned Pro Khaya ’s position regarding the principal agent ’s failure to
adjudicate alternatively, rejection of Pro Khaya’s extension of time claims 19 and 20
for late issuance of construction information and time lost due to civil unrest
respectively.

[15] On 23 January 2023, the Association of Arbitrators duly appointed the second
respondent as the adjudicator, as required by the JBCC contract to adjudicate the
dispute in terms of the procedure set out in the JBCC rules and make the
determination.

[16] On 6 February 2023 , Pro Khaya delivered a refe rral submission for the
adjudication of the dispute by the adjudicator. In the referral submission, Pro Khaya

adjudication of the dispute by the adjudicator. In the referral submission, Pro Khaya
set out its version of the dispute in detail as required by Rule 5 .1 of the J BCC
Adjudication Rules. Essentially, Pro Khaya elaborated and based its submissions on
the issues that characterised the dispute set out in the two notices of adjudication
referred to above. I pause to point out that n otably, the historical facts preceding the

referrals of 4 March 2022 and 18 November 2022 were not placed before the
adjudicator. These include the notices of dissatisfaction with the Jamieson
determination dated 21 June 2022 and the notices of disagreement dated 11
February 2022 and 21 October 2022 that preceded the referrals of 4 March 2022
and 11 November 2022 respectively.

[17] In terms of Rule 5 .2 of the J BCC Rules, the City was required to deliver its
response to Pro Khayas submissions , if any, within 10 days of the referral date, that
is, by 20 February 2023. It is common cause that the City did not submit its response
by the date mentioned above. Instead, the City delivered its response out of time on
9 March 2023, the date preceding the issuance of the adjudication determination.

[18] On 10 March 2023, t he adjudicator proceeded to make his determination by
default against the City without having regard to the City’s response. The
adjudication determination effectively awarded all the reliefs sought by P ro Khaya. In
short, the determination was that:

1. The Determination set out below is issued.
2. The Contractor is entitled:
2.1. to a determination that the Contract between the Contractor and the
Employer dated 12 November 2018 has terminated on 30 August 2020;
2.2. to:
2.2.1. be granted extensions of time in an aggregate extension of 130
days and concomitant revision of the date for Practical Completion to
26 August 2020; and,
2.2.2. an adjustment to the Contract Value, certification of and ,
pursuant thereto payment of concomitant preliminary and General
costs in the amount of R999 528 40 (excluding VAT);
2.3. to a determination that:
2.3.1. the Principal Agent is obliged to issue the final account in
accordance with the account , R26 to the Referral (and attached is X
hereto), to reflect the amount of R8 095 536.22 (plus VAT to be
added thereon);

2.3.2. the Principal Agent is required to issue the Final Payment
Certificate within 7 calendar d ays of the date of this determination,
taking into account the Final Account as determined herein a nd
reflecting the amount of R8 095 536.22 (plus VAT to be added
thereon) as being due by the Employer to the Contractor;
2.3.3. the Employer is required to make payment in terms of the Final
Payment Certificate as issued in acco rdance with paragraph 2 .3.2
above, within 14 calendar days of the issuance thereof;
2.3.4. the Employer is obliged to return the Construction Guarantee to
the Contractor;
2.3.5. the Em ployer is obliged to make payment of the adjudicator ’s
fees/costs.”

[19] The City did not file a notice of disagreement with the adjudicator ’s
determination as it is allowed to do in terms of clause 30.6.4 of the JBCC contract if it
disagrees with a determination, where upon the matter would be referred to litigation.
Nor did the City on its own litigate to challenge the determination in terms of clause
30.6.4 of the JBCC contract . Further, the City did not comply with the award that is
contained in the adjudicator’s determination hence Pro Khaya has approached the
Court to apply for enforcement of the determination.

Dispute Resolution Mechanism
[20] The following are the relevant provisions of the J BCC contract so far as it
relates to the settlement of the disputes between the parties and in particular , the
adjudication process:

“30.0 DISPUTE RESOLUTION

Settlement by the parties

30.1 Should any disagreement arise between the employer (or the principal
agent or an agent) and the contractor arising out of or concerning the
action or inaction of the employer (or the principal agent or an agent) or
the contractor, or any other matter concerning this agreement (including

the validity thereof), eit her party may give notice of a disagreement to the
other. The parties shall attempt to resolve such disagreement between
them and record such resolution in writing signed by them.

30.2 Where the disagreement is not resolved within ten (10) working days of
receipt of the notice of disagreement, the disagreement shall be deemed
to be a dispute.

30.3 The dispute shall be referred to adjudication within ten (10) working days
of the expiry of the period [30.2] by means of a notice of adjudication by
the party (the referring party) which gave the notice of disagreement.

30.4 The notice of adjudication shall clearly define the scope of the dispute and
the relief sought by adjudication.

30.5 Failure to comply with the procedure described [30.3 -4] shall cause the
dispute to be resolved by arbitration and not by adjudication.

Adjudication

30.6 Where a dispute to be referred to adjudication:

30.6.1 The adjudication shall be appointed in accordance with JBCC® Rules of
Adjudication current at the time when the dispute was declared and the
adjudication shall be conducted in terms of such rules.

30.6.2 The adjudicator shall not be eligible for subsequent appointment as the
arbitrator.

30.6.3 A determination given by the adjudicator shall be immediately binding
upon and implemented by the parties.

30.6.4 Where the adjudicator has given a determination, either party may give
notice of dissatisfaction to the other party and to adjudicator within ten

(10) working days of receipt of determination, or an extended time period
provided in the JBCC® Rules of Adjudication wherein such dispute is
referred to arbitration.2

30.6.5 Where the adjudicator has not given a determination within the time
period allowed or extended time period provided in the JBCC® Rules of
Adjudication, either party may give notice to the other party and to the
adjudicator that if such determination is not received within ten (10)
working days of receipt of this notice his appointment is thereupon
automatically terminated and such dispute is then r eferred to further
adjudication or arbitration, at the option of the claimant.”

Issues for determination

[21] In light of the facts set out above, the issues to be determined by the Court are
the following:

a) whether the adjudication determination is valid and enforceable. The integral
sub-issue in this regard is whether the adjudicator had jurisdiction to
determine the issues.
b) Embedded to the above issue, is whether the adjudication determination is
susceptible of review on the grounds advanced by the City.

Pro Khaya’s contentions

[22] Pro Khaya contends that the City is bound to comply with the adjudicator’s
determination, because the latter is an outcome of a dispute resolution mechanism
that was employed to resolve a dispute that arose between the parties under the
JBCC agreement and its rules, which is the alternative dispute resolution mechanism
agreed upon by the parties . Pro Khaya contends that it has complied in all materia l

2 It must be noted that in the instant case, the contract was amended to exclude arbitration but to
include litigation instead.

respect with all its contractual obligations and satisfied all the requirements for the
relief it seeks.

[23] Pro Khaya’s argument goes on to contend that the City ’s participation in the
adjudication process is a contractual obligation which the City failed to comply with ,
and as such, the City cannot approach this court to seek intervention in
circumstances where it failed to comply with its own contractual remedies . The
applicant concludes by arguing there is no basis in law for the court’s intervention in
a contractual process.

[24] In asserting its enforcement rights, Pro Khaya relies on Rule 6.1.3 of the JBCC
Rules which provides that the adjudicator’s determination shall be final and binding
and that the parties shall carry out without delay. The applicant argues that based on
the above and the fact that the City failed to issue a notice of dissatisfaction within
the prescribed period stipulated in the JBCC Rules the adjudication determination is
final and binding.

[25] Further reliance is placed on Item 5.2 of the JBCC Adjudication Rules which
provide as follows:

“5.2 The respondent may submit a written response to the details of dispute not
later than ten (10) working days from the referral date. Should the respondent not
submit such written response to the adjudicator within the said period, it shall be
assumed that he does not dispute the details thus submitted by the claimant.”

[26] It is common cause that the City did not submit the written response to the
adjudicator within the prescribed period set out above. The City did not submit a
notice of dissatisfaction with the determination either . On this basis, Pro Khaya
argues that the determination is final and binding , and as such, the court should
grant the order enforcing the determination.

[27] Regarding the City’s review application that seeks to set aside the
determination, Pro Khaya contends that the determination is not reviewable. The

determination, Pro Khaya contends that the determination is not reviewable. The
thrust of th is contention is that to the extent that the City relies on common law ,

alternatively arbitration in terms of the Arbitration Act 42 of 1965 (“the Arbitration
Act”), the application is misplaced, in that, according to Pro Khaya, neither common
law not the Arbitration Act applies to the adjudicator’s determination, for there was no
arbitration agreement between the parties, and that the determination was made by
the adjudicator as an expert, not an arbitrator.

The City’s response

[28] In resisting the application, the City launches a two -pronged approach in
attacking the adjudicators determination. In its first leg, the City contends that the
adjudication determination is invalid and unenforceable for lack of jurisdiction on the
part of the adjudicator. In such situation, so argues the City, the court should simply
decline to enforce the determination on the basis that it is invalid and thus
unenforceable.

[29] In the second leg, the City contends that the determination is riddled with
reviewable defects , including the jurisdictional point , and therefore falls to be
reviewed and set asid e in terms of common law , alternatively the Arbitration Act 42
of 1965 (the Arbitration Act) . In advancing it s reasoning for the review, t he City
further contends that in cases like the present, where the determination has become
both final and binding, the most suited approach is to have the determination set
aside for lack of jurisdiction.

[30] In seeking to have the adjudicator’s determination reviewed and set aside, the
City has advanced various grounds on the basis of which it argues that the
determination award is manifestly unjust and canno t be sustained. The grounds are
the following:

i) the first and second referrals to adjudication were irregular and as such the
adjudicator lacked jurisdiction;

ii) the extension of time (EOT) claims 16, 17 and 18 were irregularly before the
adjudicator, in that they were not part of the notice of disagreement that
preceded the referral notice;

iii) the issue of whether the applicant had cancelled the contract as a result of the
City’s alleged repudiation is a matter to be resolved by the courts;

iv) the adjudicator acted unreasonably, inexpertly and ultra vires;

v) the adjudicator’s determination was made on a default basis;

vi) the determination was incompetent in terms of the JBCC contract procedure;
and,

vii) there were further clear irregularities and misdirections characterising the
adjudicator’s endorsement the applicant’s final account.

Applicable Legal Principles

[31] The purpose of adjudication as a first-tier dispute resolution mechanism is to
provide a quick and interim resolution of a construction disputes so that the
construction is not interrupted or stalled by the disputes that might mutate to
prolonged arbitration or litigation process. This is also restated by the JBCC
adjudication rules , where Rule 1.1 of the JBCC adjudication rules defines
adjudication as:

“an accelerated form of dispute resolution in which a natural person determines
the dispute as an expert (and not as an arbitrator) and whose determination is
binding on the parties f or immediate compliance and which shall remain in force
until verdict overturned by an arbitration award.” (Own emphasis)

[32] Further, Rule 5.1.4 of the JBCC Rules reinforces this principle by stating that
“the adjudicator shall act as an expert in determining the dispute.”

[33] The adjudicator ’s determination is final and bin ding on the parties unless
overturned by arbitration, litigation or mutual agreement between the parties. (See
Stefanutti Stocks (Pty) Ltd v S8 Property (Pty) Ltd [2013] ZAGPJHC 388 (23 October

2013). Courts are reluctant to interfere with or set aside such a decision unless there
are serious procedural irregularities or if the adjudicator acted outside their
jurisdiction.

[34] It is trite that the adjudicator's determination is generally binding and
enforceable even if it contains an error of law effect. (See Sasol Chemical Industries
Ltd v Odell and Another (401/2014) [2014] ZASFHC 11). Further, clause 30.6.3 of
the JBCC contra ct provides that “A determination given by the adjudicator shall be
immediately binding upon and implemented by the parties.”

[35] In the event where no notice of dissatisfaction against the decision of the
adjudicator has been given within the prescribed period , the decision bec omes final
and binding on both parties. (See Tubular Holdings (Pty) Ltd DBT Technologies (Pty)
Ltd 2014 (1) SA 244 (GSJ). Further, Clause 30.6.4 of the JBCC contract provides
that where the adjudicator has giv en a determination, either party may give notice of
dissatisfaction to the other party and to adjudicator within ten (10) working days of
receipt of determination, or an extended time period provided in the JBCC Rules of
Adjudication wherein such dispute i s referred to arbitration. The JBCC contract i n
this regard has replaced arbitration clause with a litigation clause.

[36] However, where there is clearly no jurisdiction on the part of the adjudicator to
decide a dispute, the court may decline enforce ment o n the basis that the
determination is invalid. (See Framatome v Eskom Holdings SOC Ltd . [2020]
ZAGPJHC 233 (30 September 2020). It is apposite to point out that the Supreme
Court of Appeal (SCA) overturned the High Court decision in Framatome v Eskom
Holdings SOC Ltd 2022 (2) SA 395 (SCA), the SCA did not temper with the principle
relating to the court’s power to decline to enforce the determination where there is
lack of jurisdiction.

[37] In deciding whether the adjudicator had jurisdiction, the test is whether the

[37] In deciding whether the adjudicator had jurisdiction, the test is whether the
adjudicator strayed from the mandate as proscribed in the referral notice of
adjudication. Crucially, the adjudicator derives his mandate from the notice of
adjudication. A contention of lack of jurisdiction will be sustain able if the adjudicator
acted outside the mandate as set out in the referral notice.

[38] The adjudicator acts as an expert and not an arbitrator. The significance of the
distinction between an expert and an arbitrator in review proceeding s is that unlike
the arbitrator, the adjudicator does not perform a quasi-judicial function but reaches
his or her said decision based on his or her knowledge independently, based on the
material placed before him. Further, unlike arbitration, adjudication is not subject to
common law. Accordingly, the power of the court to interfere with an expert decision
in review proceedings is severely circumscribed. (See Transnet National Ports
Authority v Reit Investments (Pty) Ltd 2020 DJR 2104 (SCA) at para 33).

[39] The principle regarding the limited powers of the court to review and set aside
the adjudicators determination was well pronounced in Chelsea West (Pty) Ltd v
Roodebloem Instants (Pty) Ltd 1994(1) SA 837 (C) at 856 (C -D), where the court
held that unless there is fraud, collusion or capriciousness, or a manifestly unjust
valuation, the parties are bound by the adjudicator’s determination. This principle
was also confirmed in Caviar Helicopter CC v Executive Turbines CC and Another
2003 (3) SA 475 (W) at para 34, where the court stated as follows:

“The principles determining the circumstances in which a Court would review and set
aside a valuer’s determination have been applied in respect of the determination of
other expert umpires. According to these pri nciples, the determination of an expert
can be set aside only in the case of fraud, collusion or capriciousness or in the
event of the issu ing of a manifestly unjust valuation. Otherwise, the parties are
bound by the expert's determination.”

Jurisdictional challenge

[40] In this matter, Pro Khaya’s contention is that adjudicator’s award is final, binding
and enforceable subject only to limited d efences, none of which apply in this case.
According to Pro Khaya, the court can only review the award in terms of the section

According to Pro Khaya, the court can only review the award in terms of the section
33(1) of the Arbitration Act, which is not applicable in this case because the
adjudicator acts as an expert not an arbitrator. The City conceded this contention
and submitted that it would not be necessary to determine the applicability of the
Arbitration Act to the adjudication proceedings. Moreover, so goes Pro Khaya’s

argument, there is no arbitration clause as the applicable dispute resolution
mechanism is expressly stated in the JBCC contract, and as such there is no legal
basis for the court to review the determination. Relying on the general legal
principles stated above and also rule 6.1.3 of the JBCC Rules which provides that
the adjudicator’s determination is final and binding, and the parties shall carry it out
without delay , Pro Khaya firmly assets that the Court should enforce the
determination.

[41] The City’s contention of lack of jurisdiction on the part of the adjudicators is
based on three broad strokes . The first ground is that the referrals of the disputes
were incompetent, in that they had not been properly referred in compliance with the
dispute resolution procedure. The second ground is that the disputes that were
referred for adjudication were not the disputes as captured in the notices of
disagreement and referral notice of adjudication . The third ground is that relief
claimed in relation to the final account was not contemplated by the empowering
provisions of the JBCC contract.

[42] The question therefore is whether the adjudicator lacked the requisite
jurisdiction to make the determination in the circumstances of this case. The
argument is that he had no proper mandate, and that he acted ultra vires, in that he
acted outside the purported mandate. It is trite that, if the adjudicator lacked
jurisdiction, the determination cannot be enforceable. In the Court’s view , based on
the contentious issues in this case, the answer lies on two-staged inquiry. The first
is, whether the dispute was properly referred. The second, which should follow i f the
answer to the first is affirmative, is whether the adjudicator acted within or strayed
outside what was referred to him to make the determination.

[43] The City contends that the two referrals of the respective disputes for
adjudication were incompetent, for they were not issued in accordance with the

adjudication were incompetent, for they were not issued in accordance with the
required accelerated procedure with str ict timeframes , in that these disputes were
referred out of time and way after Pro Khaya’s notice of disagreement, and long after
Pro Khaya terminated the contract and vacated the site. Further contention is that
the dispute relating to termination of contract was determined by Jamieson and
mutated to a matter for litigation. As such, so argued the City , these disputes fel l to

be resolved by courts through litigations based on the incompetent referrals which
were not in accordance with the procedure set out in clause 30 of the JBCC contract.

[44] Pro Khaya denies t he City's contention regarding the alleged irregular referrals,
on the basis that the time periods referred to by the City in relation to the notices of
disagreement and subsequent notices of referral of the disputes were complied with
as the timeframes prescribed in clause 30 of the JBCC contract.

[45] As stated above, the jurisdiction of the adjudicator is founded on the referral
notice. Now that the City takes issue with the process followed by Pro Khaya leading
up to the issuance of the determination, it behoves the Court to retrace the steps and
make the necessary assessment of the contested referrals and determine whether
the referrals were properly placed before the adjudicator to found the mandate . This
is so because in my view, the mandate of the adjudicator in the dispute is derived
from two referrals that gave rise to the determination in question.

[46] The first referral was through the notice of adjudication dated 4 March 2022 that
was preceded by the notice of disagreement dated 13 February 2022 (the first notice
of disagreement”). The second referral was through the notice of adjudication dated
18 November 2022, that was preceded by notice of disagreement dated 31 October
2022 (the second notice of disagreement) . The referrals were submitted in terms of
clause 30.3 of the JBCC contract.

[47] The City contends that the referrals were unreasonably out of time. In particular,
the City alleged that the first referral notice of 4 March 2022, that is preceded by the
notice of disagreement of 13 February 2022 is ‘some eleven months’ late. It is also
contended that the referral notice of 18 November 2022 that was preceded by the
notice of disagreement dated 31 October 2022 is ‘more than two months’ late.

notice of disagreement dated 31 October 2022 is ‘more than two months’ late.
Notably, on perusal of the referral notices mentioned above, it appears that the City
did not respond to any of the two notices of dis agreement to take issue with the
alleged unreasonable lateness of the notices or any procedural defect thereof.

[48] In terms of clause 30.2 of the JBCC contract, the parties are allowed 10 working
days after the notice of disagreement to resolve the dispute. If the dispute remains

unresolved after the expiry of the 10 days period mentioned in clause 30.2 , the
dispute shall be referred to adjudication in terms of clause 30.3 within ten (10)
working days after the expiry the 10 day s period referred to in clause 30.2. In my
view, both referrals through the respective notices of adjudication were submitted
within the stipulated timeframes and in terms of the procedure set out in cla use 30.2
and 30.3.

[49] The City’s contention that first notice of disagreement was some eleven months
late and that the second notice of disagreement was more than two months is not
backed by facts. Pro Khaya proce eded to adjudication in terms of clause 30.3. In
any event , the Court’s view is that the City acquiesced to the adjudicator’s
jurisdiction. It cannot come at this late hour challenging jurisdiction to which it did not
object throughout the stages. The contention that the referrals are incompetent in
my view, lacks merit.

[50] Another contention by the City is that the dispute referred on 4 March 2022 is a
matter for litigation and was therefore improperly referred to the adjudicator .
According to the City, the dispute relates to the termination of the contract on 31
August 2020 and is essentially the same dispute that was adjudicated by Jamieson,
who issued a determination that was published on 18 June 2021 . This dispute,
according to the City , was left live after Pro Khaya delivered a notice of
dissatisfaction dated 26 June 2021 with the determination by Jamieson. The dispute,
so goes the argument, should have been resolved by litigation as provided for in
clause 30.6.4 of the JBCC contract , and not by adjudication. In essence, the
adjudicator acted ultra vires. This is denied by Pro Khaya.

[51] On the papers placed before court, the City did not object to the mandate of the
adjudicator to determine this issue. The adjudicator found that the parties are ad
idem that the contract was terminated on 30 August 2020 . Thus, the dispute relating

idem that the contract was terminated on 30 August 2020 . Thus, the dispute relating
to the termination of the contract is moot. In any event , clause 30.6.4 of the JBCC
contract provides that where the a djudicator has given a determination , any party
may give notice of dissatisfaction to the other party and to the adjudicator within ten
(10) working days of receipt of the determination wherein dispute is referred to
litigation. No notice of dissatisfaction was submitted by the City.

[52] The second referral was submitted on 18 November 2022, having been
preceded by a notice of disagreement dated 31 October 2022. This notice related to
the principal agents’ failur e to adjudicate , alternatively his rejection o f Pro Khaya’s
EOT Claims numbers 19 and 20 that the adjudicator determined. The EOT Claims
16, 17 and 18 were placed before the adjudicator for adjudication through the referral
submission that was delivered by Pro Khaya on 6 February 2023, when elaborating
in the extension of time claims . The mandate of the adjudicator is derived from the
referral. The referral was not contested. In the determination, the adjudicator found
that all the EOTs were properly motivated in Pro Khaya’s referral and that he found
no reason why he ought not to accede to the relief sought by Pro Khaya.

[53] In the C ourt’s view the adjudicator was within his power s to determine all the
EOT claims that were placed before him. T o the extent that the City contends that
the adjudicator was wrong in his adjudication and determination, that is a matter that
delves into merits , and not a matter for review that ousts the jurisdiction of the
adjudicator. Consequently, the adjudicator ’s determination in respect of all the EOT
claims, including claims no 16, 17 and 18 that were placed before him for
determination, were properly quantified and supported. Such a determination could
be reasonably arrived at by an expert in the form of an adjudicator. In my view, the
adjudicator’s determinations are valid.

[54] In light of the reasoning laid out above, the Court finds that the d ispute
resolution process prescribed in Clause 30 was complied with . It follows that the
adjudicator had the requisite jurisdiction to determine the disputes that were properly
referred to him. Thus, the contention that the adjudicator lacked jurisdiction to make
determination is not sustainable and plainly appears to be an afterthought in the

determination is not sustainable and plainly appears to be an afterthought in the
instant case. Consequently, the Court finds that the determination is enforceable.

Review counter application

[55] In its counter application for review , the City argues that adjudicators
determination should be reviews and set aside in terms of common law or the
Arbitration Act. Pro Khaya contends that there is no legal basis in this case to review

adjudicator's decision, for the narrow grounds upon which the court interfere do not
exist in this case . Arbitration Act does not apply to the adjudicator , purely because
the adjudicator acted as an expert not arbitrator , and there is no arbitration
agreement inviting the review of the adjudicator’s decision . That was rightly
conceded by the City.

[56] In this case, the court has found that the adjudicator acted within his mandate
that is derived from the referrals of the dispute in terms of the JBCC contract and in
compliance with the JBCC adjudication rules. There is no contention that suggests
that the determination was predicated on fraud, collusion, capriciousness, and the
court did not find that either.

[57] The adjudicator acted as an expert and not an arbitrator, and as such, there is
no room for the court to review the adjudicators decision in terms of the arbitration
act. Further, the powers of the court to review are strictly narrow and limited. This is
also because the parties bound themselves in the contract to follow to resolve a
dispute through the adjudication process. The general approach by the court is to
respect the contract agreed upon between the parties . The Court is not empowered
to re-write the terms of the contract for the parties, in this instance, by tempering with
the powers and jurisdiction of the adjudicator that was agreed to by the parties.

[58] Notwithstanding the above , i t is trite that where the adjudicator’s decision is
tainted with irregularities that render the determination manifestly unjust, the court
enjoys the power to interfere with the adjudicator’s decision. In the City of Cape
Town v Namasthethu Electrical (Pty) Ltd [2018] ZAWHC 150, at paragraphs 86-89,
where an expert appointed on the basis of their skills and experience delves on a
knowledge area that is not his speciality, the court took a view that there was a
nuanced issue that called for the court’s intervention, for the determination was
manifestly unjust.

manifestly unjust.

[59] Citing the abovementioned case, the City contends that the adjudicator , being a
practising advocate , made determination on a dispute that involves a complex
technical area of extension of time (EO) and for the production of a final account
without deferring to technical expert in the area of the built environment . The

question is whether on the facts of this case, it can be found that the adjudicator
made findings on a knowledge area that is outside his expert knowledge and
expertise.

[60] While the Court accepts that manifest injustice might arise in circumstances
where the adjudicator pontificates on an unfamiliar specialist knowledge area without
deference, it does not follow that such a situation obtained in th e instant case. On
the facts, the adjudi cator possesses not only legal knowledge and skill . He was
appointed by the Association of Arbitrators based on his skills as a seasoned
practitioner in construction law for more than 30 years, including years of experience
in construction dispute resolution mechanism. Surely, if there was a cause for
concern insofar as jurisdiction is concerned, he could have pointed that out to Pro
Khaya and or refused to adjudicate the matter. Notably, at no stage did the City
object on the appointment of the adjudication for lack of skills in the area. The Court
has not been taken into confidence in illustrating lack of expertise on the part of the
adjudicator to determine the dispute. In the premise, the Co urt is not persuaded that
the adjudicator was not armed with the necessary expertise to adjudicate the dispute
so much so that the decision was vitiated by irregularities and or manifestly unjust.

[61] Another ground of review advanced is that the adjudicator made the
determination on a default basis. The argument advanced is that the adjudicator may
not enter a default judgment, and that in the absence of the other party, the
adjudicator was required to apply his mind and cond uct expert investigation on the
submissions of the other party. Rule 5.2 of the JBCC rules provides that s hould the
respondent not submit such written response to the adjudicator within the said period
it shall be assumed that he does not dispute the details thus submitted by the
claimant. Admittedly, the adjudicator is bound to apply his mind on the argument

claimant. Admittedly, the adjudicator is bound to apply his mind on the argument
placed before him. In this case, Pro Khaya made written submissions to the
adjudicator, to which the City failed to respond within the time stipulated by the JBCC
rules.

[62] In the Court’s view, the adjudicator acted well within his mandate and powers in
terms of the JBCC contract in proceeding with determination by default. Moreover,
he made the findings within his knowledge and expertise. It does not appear on the

facts that in the determination of the dispute the adjudicator did not apply his
expertise to interrogate the contractor’s submissions placed before him in making the
determination simply because he made the determination by default. It is not for the
court to cast aspersions on the correctness of the expert’s determination that was
made within the scope of the dispute referred to him by the parties . On the facts, it
seems to me that the adjudicator considered the contractors submission and
delivered a written determination and expressed reasons for his decision.

[63] In this matter, the Court finds that a case has not been made for the Court to
justify the Court’s interference with the determination of the a djudicator. The review
grounds advanced by the City do not fall within the threshold of the narrow grounds
for review of the adjudicator’s determination. Accordingly, the Court does not find
any reason to set aside the determination. Consequently, the counter -application
seeking to review and set aside the determination must fail. It follows that the
determination is final and binding between the parties and thus enforceable.
Accordingly, the determination falls to be complied with forthwith.

Costs

[64] In this application, Pro Khaya has succeeded. The general principle is that costs
follow the results. The Court does not find any reason that this principle should not
find application in this case. It follows that costs should be awarded to the successful
party. In my view, t he complexity of this matter warrants that costs be granted at
Scale C of the High Court.

Order

In light of the above, the following order is made:

1 The respondent is ordered to comply with the Adjudication Determination
dated 10 March 2023 published by the Adjudicator Adv JG Vasserman SC.

2 The counter application to set aside the adjudicator ’s determination is
dismissed.

3 The respondent is order ed to pay costs of this application , including costs of
the counter application, at Scale C of the High Court


________________________
ZL MAPOMA
Acting Judge of the High Court
Western Cape Division


Appearances

Counsel for the Applicant : Adv P Tredoux
Instructed by : Thiefenthaler Attorneys Inc, Cape Town

Counsel for the Respondent: Adv S Rosenburg SC with him Adv M Greig
Instructed by : Timothy and Thimothy Attorneys, Cape Town