IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case no: 2026- 045799
In the matter between:
CCC CONSULTANCY (PTY) LTD
t/a CAPECON CONSTRUCTION (PTY) LTD
Applicant
and
SPRINGS CAR WHOLESALERS (PTY) LTD Respondent
Coram: Justice J Cloete
Heard: 21 April 2026
Delivered electronically: 29 April 2026
ORDER
1. It is declared that clause 30.7 (the arbitration clause) of the Joint Building
Contracts Committee Principal Building Agreement Edition 6.2 – May 2018,
hereinafter referred to as the ‘JBCC’, and which comprises one of the
documents governing the building contract concluded between the parties, is
binding upon them.
2. Unless the parties agree otherwise in writing within 10 (TEN) days from date
of this order on the appointment of an arbitrator, such appointment shall be
made by the Association of Arbitrators of Southern Africa in terms of clause
30.7.4 of the JBCC read with clause B 13 .0 of the Contract Data – Project &
Contract Information, annexed as ‘CP 3’ to the applicant’s founding
affidavit.
3. The respondent shall pay the applicant’s costs on Scale C (party and party),
including the costs of one senior counsel, as taxed or agreed.
________________________________________________________________
JUDGMENT
________________________________________________________________
Cloete J:
[1] The two main issues for determination in this opposed application are: (a)
whether the parties concluded a binding contract containing an arbitration
clause; and (b) if so, the appropriate referral for purposes of arbitration.
[2] The following facts are common cause. During Octobe r to December
2023, the respondent appointed the applicant as principal building contractor to
construct a dwelling house on its property in Camps Bay (the house). The
appointment was preceded by the following events: (a) on 9 September 2023 ,
the applicant received a written invitation to tender for the construction of the
house; (b) on 19 October 2023, the applicant submitted a comprehensive written
tender, in accordance with the terms and conditions of the invitation, to the
respondent’s duly appointed agent, JZE Architects (JZE) ; (c) on 22 November
2023, JZE issue d a ‘letter of intent ’, in which it advised of the respondent’s
intention to appoint the applicant as principal contractor ‘for the
abovementioned contract ’ ; and (d) on 7 December 2023 , JZE wro te to the
applicant confirming the award, again for ‘the abovementioned contract’.
[3] It is also common cause that : (a) the site was handed over t o the
applicant in November 2023, with execution of the building works commencing
in December 2023; and (b) during the period 21 January 2024 to 3 June 2025,
JZE issued 15 interim payment certificates (IPC’s) to the applicant, all of which
were paid by the respondent, save for the last.
[4] It was in July/ August 2025 that a dispute arose between the parties, with
the respondent alleging that the applicant had breached its contractual
obligations. According to the respondent this entitled it to cancel ‘the building
contract’. The applicant disputes that it breached the contract and thus denies
that the respondent was entitled to cancel. The applicant has calculated its claim
against the respondent to be approximately R4.5 million excluding interest and
damages. The respondent calculates its claim against the applicant to be in the
region of R6 million, of which R4.4 million has apparently already been
quantified.
[5] The invitation to tender included the following documents: (a) contract
data, which in turn incorporated contract information ; (b) a bill of quantities;
and (c) a set of drawings. The contract data (and contract information) explicitly
refer to the ‘JBCC Series 2000 Principal Building Agreement (Edition 6.2 May
2018) published by the Joint Building Contracts Committee ’ (JBCC) as
governing the tender . There is no dispute that the applicant’s tender was in
accordance with the tender documentation.
[6] The respondent’s letter of intent, issued thereafter by JZE, confirmed that
the applicant was appointed as principal contractor in accordance with the
tender documentation. The JBCC contains an arbitration clause and reads in
relevant part as follows:
“Arbitration
30.7 Where the dispute is referred to arbitration : …
30.7.4 The arbitrator shall be appointed by the nominating body [CD i.e contract
data] and shall be deemed to have been appointed by the parties…”
[7] In turn, clause B 13.0 of the contract data identifies the nominating body
as the Association of Arbitrators of Southern Africa. The 15 payment
certificates issued by JZE on behalf of the respondent reflect that each was
issued ‘in terms of … the JBCC’.
[8] Mr Abdillah Williams , the architect involved and employed by JZE,
deposed to an affidavit (albeit in reply ) in which he unequivocally confirmed
that: (a) the applicant, in response to the tender invitation , submitted its offer to
perform the works subject to the JBCC ; (b) the respondent accepted the
applicant’s offer; and (c) all processes and work undertaken by the applicant
‘and the remainder of the professional team’ for the construction of the house
occurred in accordance with the provisions of the JBCC.
[9] The letter of intent stipulated that the applicant ’s appointment was to be
subject, inter alia, to all relevant contract documentation being finalised ‘for
signing’. On its plain wording, it was therefore not a requirement that such
documentation had to be signed as a pre -condition for the contract to
commence. This is consistent with the letter of award which followed on 7
December 2023, in which it was stated that “we confirm the award … in line
with, and in terms of the letter of intent …”. It is also consistent with the letter
of cancellation sent to the applicant by the respondent’s attorney on 4 August
2025, in which he informed the applicant that it was cancelling ‘the building
contract’ concluded between the parties.
[10] It was only much later on 24 November 2025 , after the applicant
formally referred the dispute to arbitration, that for the first time the respondent
purported to reserve its rights in relation to the applicability of the JBCC , while
at the same time advising that “without prejudice to its rights, our client is
amenable to engaging in arbitration through the Association of Arbitrators
(Southern Africa) ”. No mention was made of any other building contract
concluded between the parties. Indeed, the contract allegedly relied upon by the
respondent remains a mystery, since its terms have still not been disclosed, even
in its answering affidavit in this application.
[11] The correspondence further reveals that it was only after the parties could
not reach agreement on the identity of the arbitrator to be appointed that, on 14
January 2026 , the respondent’s attorney advised that ‘ our client is no longer
amenable to this matter being submitted to arbitration’ . The respondent also
subsequently adopted the stance that it had never agreed thereto under the guise
of its earlier ‘reservation of rights’ pertaining to the applicability of the JBCC.
Two further communications by the applicant’s attorney to the respondent’s
attorney disputing this and formally calling on the respondent to submit to
arbitration under threat of approaching court for appropriate relief , went
unanswered.
[12] The applicant then launched this application in terms of s 12(2) of the
Arbitration Act 1 which deals with the power conferred upon a court to appoint
an arbitrator, and reads for present purposes as follows:
“If the appointment referred to in the [written notice requiring appointment or agreement to
appoint an arbitrator in accordance with ss 1] is not made or agreed to , as the case may be,
1 Arbitration Act 42 of 1965.
within seven days after service of the notice, the party who gave the notice, may upon notice
to the other party … apply to the court to make the necessary appointment, and thereupon the
court may appoint an arbitrator…”
[13] The respondent’s grounds of opposition to the relief claimed on the
merits are as follows. First, section 12(2) only confers a residual power on the
court to appoint an arbitrator. In other words, there must be an antecedent
arbitration agreement that is valid and binding between the parties , and the
court’s function is limited to facilitating the appointment of an arbitrator
pursuant to the parties’ agreement to arbitrate. This is correct. However, the
respondent contends for the first time in its answering affidavit that there is no
antecedent agreement in the present instance ; the letter of intent and award
‘impose a condition’ that all relevant documentation be signed, which was never
done, and thus ‘no operative, binding or enforceable arbitration agreement’
came into being between the parties. In these circumstances it is unsurprisin g
that Mr Williams’ affidavit was only filed in reply.
[14] This ground of oppos ition fails to pass muster . It flies in the face of the
admitted facts that: (a) the respondent appointed JZE as principal agent for the
project; (b) the applicant submitted a comprehensive tender, signed by it on
terms including the JBCC, which the respondent accepted in writing , and in
which the award to the applicant , and its appointment as principal contractor ,
were expressly confirmed; and (c) JZE, in its capacity as such , subsequently
issued 15 IPC’s to the applicant in terms of the JBCC of which all but the last
were paid by the respondent. There can be no doubt, in these circumstances,
that consensus existed between the par ties with regard to the provisions of the
building contract.
[15] It is so that an ‘arbitration agreement’ in the Arbitration Act is defined as
[15] It is so that an ‘arbitration agreement’ in the Arbitration Act is defined as
meaning “a written agreement providing for the reference to arbitration of any
existing dispute or any fu ture dispute relating to a matter specified in the
---
agreement…”. However Butler & Finsen: Arbitration in South Africa make it
clear that the Arbitration Act “does not require the written arbitration agreement
to be signed by the parties; it is sufficient if they have adopted and acted on the
written agreement”.2 Moreover, and albeit in a different context, in Pillay and
Another v Shaik and Others 3 the Supreme Court of Appeal held as follows:
“I do not agree with the court a quo’s conclusion that there could be no binding contracts
between the parties unless each was signed by or on behalf of the buyers and the sellers. In
my opinion it is clear from Goldblatt v Freemantle , supra, and the authorities cited therein
that, in the absence of a statute which prescribes writing signed by the pa rties or their
authorised representatives as an essential requisite for the creation of a contractual obligation
(something that does not apply here) an ag reement between parties which satisfies all the
other requirements for contractual validity will be held not to have given rise to contractual
obligations only if there is a pre -existing contract between the parties which prescribes
compliance with a formality o r formalities before a binding contract can come into
existence…”
[16] In the present case, given: (a) my finding that there was consensus on the
terms of the contract, which by clear reference includes the arbitration clause in
the JBCC; (b) the authorities to which I have referred above; and (c) there is no
formality required under the Arbitration Act in the sense for which the
respondent contends; as well as my findings in relation to the third ground of
opposition (below) I am persuaded in the applicant’s favour on this point.
[17] The second ground of opposition is the respondent’s contention that there
is a material dispute of fact on the papers which must be determined in the
respondent’s favour in accordance with the Plascon-Evans test. It is also
respondent’s favour in accordance with the Plascon-Evans test. It is also
submitted – somewhat contradictorily - that the applicant failed to make out a
case in its founding affidavit , and it is not permissible to seek to bolster it in
reply. The short answer to this is that the re spondent was required to engage
meaningfully with the applicant’s allegations in relation to the terms of the
2 Arbitration in South Africa: Law and Practice p38 at 2.1.2. referring to Fassler, Kamstra & Holmes v
Stallion Group of Companies (Pty) Ltd 1992 (3) SA 825 (W) 828D-I.
3 Pillay and Another v Shaik and Others 2009 (4) SA 74 (SCA) para 50.
contract and singularly failed to do so (see inter alia Wightman 4). Indeed, in my
view the respondent’s allegations are so far -fetched and improbable on this
score that they fall to be rejected on the papers as they stand.
[18] The third ground is that the applicant cannot succeed in the relief it seeks
because in its founding affidavit it contended expressly for the conclusion of a
written building contract on the terms set out in its tender, the letter of intent,
the award and the contr act data (and other documents , including the JBCC,
incorporated by reference). The respondent maintains that these documents
impose conditions regarding the finalisation and signing of the contract
documentation, which were not fulfilled. However, as demonstrated earlier,
actual signature was not a requirement in terms of the letter of intent and the
award. The condition contained therein was that that the documents had to be
finalised for signing . They quite clearly were when regard is had to the
undisputed facts as well as the inherent probabilities.
[19] The respondent also latches onto clause 5.2 of the JBCC , in terms of
which it was required of the parties to sign ‘the original agreement’. This term
is nowhere defined in the JBCC. Furthermore, clause 3.1 of the JBCC provides
that ‘the objective of this agreement is the execution of and payment for the
works for which there has been an offer by the contractor and an acceptance by
the employer’ (my emphasi s) ; and in terms of clause 3.3, the JBCC ‘shall
come into force on the date of acceptance by the employer’. I have been unable
to find any provision in the JBCC which makes signature thereof by both parties
a pre-condition to an enforceable contract. Counsel for the respondent did not
draw my attention to one either.
[20] The fourth ground is that, even if the arbitration clause in the JBCC is
found to be binding, the relief sought is incompetent, because the applicant asks
found to be binding, the relief sought is incompetent, because the applicant asks
for the appointment of an arbitrator other than by the Association of Arbitrators
4 Wightman t/as JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA) para 13.
as provided for th erein. However, during argument, counsel for the respondent
fairly accepted that it is open to this court under the applicant’s prayer for
alternative relief to order an appointment in terms of the JBCC read with the
contract data. That dispenses with this ground.
[21] Finally, it bears mention that after hearing argument on urgency, I ruled
this application to be sufficiently urgent to warrant a hearing earlier than on the
opposed motion roll (February 2027) which is what the respondent also
contended for. For purposes of taxation, the Taxing Master is directed to include
the applicant’s costs incurred in relation to the issue of urgency.
Order
[22] The following order is made:
1. It is declared that clause 30 .7 (the arbitration clause) of the Joint
Building Contracts Committee Principal Buil ding Agreement Edition 6.2 –
May 2018, hereinafter referred to as the ‘JBCC’, and which comprises one
of the documents governing the building contract concluded between the
parties, is binding upon them;
2. Unless the parties agree otherwise in writing within 10 (TEN) days
from date of this order on the appointment of an arbitrator, such
appointment shall be made by the Association of Arbitrators of Southern
Africa in terms of clause 30.7.4 of the JBCC read with clause B 13.0 of the
Contract Data – Project & Contract Information, annexed as ‘CP 3’ to the
applicant’s founding affidavit; and
3. The respondent shall pay the applicant’s costs on Scale C (party and
party), including the costs of one senior counsel, as taxed or agreed.
_____________________________
J I CLOETE
JUDGE OF THE HIGH COURT
Appearances
For applicant: Adv P Vivier SC
Instructed by: Enderstein Malumbete Inc (Mr S Pienaar)
For respondent: Adv S W Burger
Instructed by: Knowles Husain Lindsay Inc (Mr M Husain)