An appropriate avoidance and dispute resolution regime for the South African construction industry

Abstract

The construction industry is considered to be complex due to the involvement of multiple role players across different sectors; whose roles and responsibilities are largely governed by the construction contract entered into by the contracting parties. The construction industry is also prevalent to disputes which subsequently leads to dire consequences namely operational, financial as well as a deterioration of the relationship between the contracting parties. The study set out to ascertain to what extent, if any, does the dispute resolution regime in the South African construction industry ensure appropriate dispute avoidance and resolution. In light of the fact that England and NSW, Australia are considered forerunners on both dispute avoidance and ADR methods within the construction industry, a comparative study is done by comparing the South African dispute avoidance and resolution methods provided for in the recommended construction contracts and legislatively provided for, where applicable, with those dispute avoidance and resolution methods, whether prescribed by statute or contract, currently used in England and NSW, Australia. The comparison enables the formation of an informed opinion as to the appropriateness of the South African law in the area of dispute resolution within the construction industry. This study attempted to set out the basic principles required for the establishment of a suitable dispute avoidance and resolution regime and therefore enhances the knowledge of the law, in particular dispute avoidance and ADR within the construction law of South Africa. The current best practices in the English and New South Wales construction industries were also analysed and discussed so as to make recommendations for the enhancing of both dispute avoidance strategies and resolution processes within the South African construction industry. It was ascertained that the South African construction industry, has limited best practices in respect of dispute avoidance and dispute resolution when addressing potential disputes and/or disputes that arise therein. The study found that the South African construction industry could benefit from some of the best practices of the English and NSW construction industries as the South African construction industry's best principles were found to be lacking